Judge: Joel L. Lofton, Case: 22AHCV00843, Date: 2023-03-14 Tentative Ruling

Case Number: 22AHCV00843    Hearing Date: March 14, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 14, 2023                                   TRIAL DATE: No date set.

CASE:                         BELLA DEVELOPMENT LLC, RAIN GARDEN LLC, and KIM REAL ESTATE  v. BYONG YOP JIN, HOA JIN, BY JIN, LLC and DOES 1 to 20, inclusive.

CASE NO.:                 22AHCV01237

MOTION TO EXPUNGE LIS PENDENS

MOVING PARTY:               Defendants Byong Yop Jin, Hoa Jin, and BY Jin, LLC

RESPONDING PARTY:      Plaintiffs Bella Development LLC

SERVICE:                              Filed February 1, 2023

OPPOSITION:                       Filed March 1, 2023

REPLY:                                   Filed March 7, 2023

RELIEF REQUESTED

            Defendants move to expunge the lis pendens recorded on December 30, 2022.

BACKGROUND

             This case arises out of Plaintiffs Bella Development LLC, Rain Garden LLC, and Kim Real Estate (“Plaintiffs”) claim that Defendants Byong Yop Jin, Hoa Jin, and By Jin, LLC (“Defendants”) failed to make the required payments for the renovation and sale of property located at 2409 El Paseo in Alhambra, California (“Subject Property”). Plaintiffs allege that they engage in ventures to flip real property by buying the property, remodeling the property, and selling it for profit. Plaintiffs allege Defendants failed to make a payment of $116,423.48 pursuant to an oral contract to renovate and sell the Subject Property.

            Plaintiffs filed a first amended complaint (“FAC”) on March 1, 2023, alleging three causes of action for (1) breach of oral contract, (2) quiet title, and (3) declaratory relief.

TENTATIVE RULING

Defendants’ motion to expunge Plaintiffs’ lis pendens is granted.

            Defendants’ requests for attorney’s fees is granted in the amount of $1545.

REQUEST FOR JUDICIAL NOTICE

            Defendants request for judicial notice for exhibit 1 is granted pursuant to Evidence Code section 452, subdivision (c).

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

             A lis pendens was recorded on December 30, 2022 for the Subject Property. Code of Civil Procedure section 405.22 provides, in part “[i]mmediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending.” The court does not see the notice of the lis pendens in its records, and therefore, Plaintiffs’ lis pendens is procedurally deficient.

            Defendants move to expunge the lis pendens because Plaintiffs fail to allege a real property claim and fail to establish probable validity of the claim.

“[T]he 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. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.” (Code Civ. Proc. section 405.31.)

“[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” (Code Civ. Proc. section 405.32.)

In their FAC, Plaintiffs allege that this case involve a real property claim because they invested 12.75% of the investment cost and should retain a 12.75% ownership of the subject property. (FAC ¶ 36.)

“Probable validity, with respect to a real property claim, ‘means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.’ ” (J & A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 32-33.)

Plaintiffs’ FAC includes two exhibits, an investment income statement, Exhibit 1, and a purported agreement for improvements to real property, Exhibit 2. Exhibit 1 provides the investment breakdown, including Plaintiffs’ 12.75% investment share. However, nothing in Exhibit 1 provides that Plaintiffs are entitled to the equivalent share of ownership of the subject property. Further, Plaintiffs do not provide anything in their opposition to Defendants’ motion to establish that they likely to prevail on their claim that they retain 12.75% interest in the subject property. Plaintiffs’ own allegations provide that they are not on the title of the Subject Property. (FAC ¶ 34.)

As currently stated, Plaintiffs’ allegations in their FAC are for monetary recovery rather than a real property claim. Additionally, Plaintiffs have the burden of establishing probable validity of their real property claims, and they failed to meet their burden.

Lastly, although Plaintiffs request a bond, pursuant to Code of Civil Procedure sections 405.31 and 405.31, an order of undertaking is not appropriate because Plaintiffs have failed to meet their burden.

            Attorney’s Fees and Costs

            “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.” (Code Civ. Proc. section 405.38.)

            Defendants seek attorney’s fees totaling $5,257.50 for 10.5 hours of work at $495 per hour plus a $60.00 filing fee.

            Defendants’ request for attorney’s fees is granted for 3.5 hours of work at a rate of $495 per hour plus a $60.00 filing fee for a total of $1545.

CONCLUSION

            Defendants’ motion to expunge Plaintiffs’ lis pendens is GRANTED.

            Defendants’ requests for attorney’s fees is GRANTED in the amount of $1545.

Dated:   March 14, 2023                                 ___________________________________

                                                                                    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