Judge: John J. Kralik, Case: 22BBCV00328, Date: 2023-02-17 Tentative Ruling
Case Number: 22BBCV00328 Hearing Date: February 17, 2023 Dept: NCB
North
Central District
|
diana
gomez, et al., Plaintiffs, v. esparanza
p. uc-barrera, et al., Defendants. |
Case No.: 22BBCV00328 Hearing Date: February 17, 2023 [TENTATIVE] order RE: motion to expunge notice of pendency of
action (lis pendens) and request for attorneys’ fees and costs |
BACKGROUND
A.
Allegations
Plaintiff Diana Gomez, Plaintiff William
Antonio Barrera Jr., and Defendant Sadie Gomez-Rosas are siblings. Defendant Esperanza P. UC-Barrera is their mother. Defendants The Barrera Family Trust Agreement
Dated 10/03/1996, The Barrera Living Trust Agreement, The Barrera 1996 Trust
Agreement, and Barrera Trust are living trusts.
Plaintiffs allege that on October 3,
1996, a living trust was created by their father under one of the
aforementioned “possible” names. On
March 14, 1997, Plaintiffs’ father passed away leaving the real property
located at 2309 N. Naomi St., Burbank, CA 91504 under the living trust in
possession of its beneficiaries, which includes Plaintiffs. They allege that though they have an interest
in the property, Defendants have put the property up for sale without Plaintiffs’
consent. Plaintiffs allege that Defendants have refused to provide a copy of the
living trust agreement to Plaintiffs. Diana
Gomez alleges that she moved into the subject premises in 2015 and has acted as
the onsite manager for over 20 years. On
April 7, 2022, Defendants served Diana Gomez with a 30-Day Notice to Vacate.
The second amended complaint (“SAC”),
filed January 17, 2023, alleges causes of action for: (1) quiet title; (2)
promissory estoppel; (3) promissory fraud; (4) breach of fiduciary duty; (5)
constructive and/or resulting trust; (6) declaratory relief; and (7) IIED.
On July 6, 2022, the following defaults
were entered: The Barrera Family Trust Agreement Dated 10/03/1996, a living
trust; The Barrera Living Trust Agreement, a living trust; The Barrera 1996
Trust Agreement, a living trust; and Barrera Trust, a living trust.
B.
Motion on Calendar
On January 24, 2023, Defendant Sadia
Gomez-Rosas (“Defendant”) filed a motion to expunge notice of pendency of action
(lis pendens) and request for attorney’s fees and costs in the amount of $6,051.50.
On February 6, 2023, Plaintiff filed an
opposition brief. On February 7, 2023,
Plaintiff filed the declaration of Areg A. Sarkissian in support of the opposition
brief.
LEGAL STANDARD
Under CCP § 405.30, at any time after a
notice of pendency of action has been recorded, any party with an interest in
the real property may apply to the Court to expunge the notice. A lis pendens may be expunged either under:
(a) CCP § 405.31 if the pleadings do not contain a real property claim or (b)
CCP § 405.32 if the Court finds that the party claiming the lis pendens has not
established by a preponderance of the evidence the probable validity of the
real property claim. Under CCP § 405.30,
the party claiming the lis pendens has the burden of proof under sections
405.31 and 405.32.
Accordingly, the plaintiff has the burden
of demonstrating that their pleadings contain a real property claim and that
the probable validity of their real property claim can be established by a
preponderance of the evidence.
"Probable validity" exists when "it is more likely than
not that the claimant will obtain a judgment on the claim." (CCP § 405.3.)
DISCUSSION
Defendant
moves to expunge the notice of pendency of action (lis pendens) on the ground that
the notice fails to state a “Real Property Claim” of probable validity pursuant
to CCP § 405.4.
A.
Real Property Claim (CCP § 405.31)
Pursuant to CCP §
405.31, a lis pendens may be expunged if the pleadings do not contain a real
property claim. In making a determination
pursuant to section 405.31, the court must engage in a
demurrer-like analysis. (Kirkeby
v. Superior Court (2004) 33 Cal.4th 642, 647–648.) “‘Rather than analyzing whether the pleading states any claim
at all, as on a general demurrer, the court must undertake the more limited
analysis of whether the pleading states a real property claim.’ [Citation.]
Review ‘involves only a review of the adequacy of the pleading and normally
should not involve evidence from either side, other than possibly that which
may be judicially noticed as on a demurrer.’ [Citation.] Therefore, review of
an expungement order under section 405.31 is limited to whether a
real property claim has been properly pled by the claimant. [Citation.]” (Id. at 648.)
In the moving papers, Defendant
argues that none of the claims are a “real property claim.” In opposition, Plaintiffs argue that the 1st
cause of action for quiet title is a real property claim.
A quiet title
complaint shall be verified and include the following: “(a) A description of
the property that is the subject of the action. In the case of tangible
personal property, the description shall include its usual location. In the
case of real property, the description shall include both its legal description
and its street address or common designation, if any. [¶] (b) The title of the
plaintiff as to which a determination under this chapter is sought and the
basis of the title. If the title is based upon adverse possession, the
complaint shall allege the specific facts constituting the adverse possession.
[¶] (c) The adverse claims to the title of the plaintiff against which a determination
is sought. [¶] (d) The date as of which the determination is sought. If the
determination is sought as of a date other than the date the complaint is
filed, the complaint shall include a statement of the reasons why a
determination as of that date is sought. [¶] (e) A prayer for the determination
of the title of the plaintiff against the adverse claims.” (CCP § 761.020.)
The Court has considered
Plaintiffs’ 1st cause of action in a demurrer to the FAC and found that
it was not adequately pled because Plaintiffs did not allege sufficient facts
that they claimed any title to the property.
The same issue persists in the SAC.
Plaintiffs allege that when their father passed away, he left the
subject property under the trust in possession of its beneficiaries, which
include Plaintiffs. (SAC, ¶¶14-15.) In the 1st cause of action,
Plaintiffs allege that the living trust names Plaintiffs as beneficiaries and
that they are “entitled to a portion of the Property per the terms of the
Living Trust and in light of the fact that Plaintiffs used their own funds to
pay for expenses related to the Property….”
(SAC, ¶¶23-233.) However, Plaintiffs
have not alleged that they hold any interest in the title to the
property. Plaintiffs appear to admit
that the property is under the Trust, for which they are only beneficiaries. As such, it appears that Plaintiffs lack standing
to bring a quiet title action as they have not stated the basic element of any
interest in the title to the property.
The Court addressed this issue in its order on the demurrer to the FAC and
the SAC still continues to have this defect.
While a quiet
title claim would ordinarily be categorized as a “real property claim,” Plaintiffs’
quiet title claim fails to allege the essential elements of the claim and this
issue has persisted in prior iterations of the complaint.
In the moving papers, Defendant argues that
the 2nd to 7th causes of action for promissory estoppel, promissory
fraud, breach of fiduciary duty, constructive and/or resulting trust, declaratory
relief, and IIED are not real property claims.
In the opposition brief, Plaintiffs appear to concede this point and
argue solely that the 1st cause of action is a real property
claim. Thus, the Court will not discuss
whether the 2nd to 7th causes of action are “real
property claims.”
For these reasons,
the Court finds that Plaintiffs’ SAC does not include a “real property claim.” Thus, the analysis ends here, such that this
motion to expunge lis pendens may be granted.
B.
Probable Validity of Real Property Claims (CCP §
405.32)
If this action had
involved real property claims, the Court would need to determine whether the
plaintiff (the party claiming the lis pendens) has established his burden of
proof by the preponderance of the evidence the probability of their real
property claim prior to making an order expunging the lis pendens notice. (CCP §§ 405.30, 405.32.)
Both Plaintiffs
and Defendants have offered only declarations of their attorneys on this motion.
In sum, the Court does not have an
evidentiary basis to rule one way or another on the claims before it. As far as the Court can tell, Plaintiffs
believe that the original version of the father’s trust left them a share of the
estate. Defendants have a revised version of this trust that disinherits Plaintiffs
but claim not to have even a copy of the original trust. As improbable and
difficult to believe as this may be, title to the property remains in the trust.
The Court does not yet have evidence regarding the loss or destruction of the
first trust, or evidence of the impropriety of the revisions. At this point,
there is no basis to rule one way or another on the merits of the matter.
C.
Request for Attorney’s Fees and Costs
Under CCP § 405.38,
the Court is authorized to award reasonable attorney fees and costs to the
prevailing party on a motion to expunge a lis pendens.
In the notice of
motion, Defendant seeks $6,051.50 in attorney’s fees against Plaintiffs and
their attorneys of record. Defense counsel
Matthew R. Stidham states that his paralegal spent 2.5 hours on this motion at
$350/hour ($875) and that he spent 4.2 hours on this motion and anticipates
spending 1.5 hours at the hearing at $595/hour ($3,391.50). (Stidham Decl., ¶¶15-17.) He anticipates spending 1.5 hours on attending
the hearing. (Id., ¶18.) For the time spent by Mr. Stidham and his
paralegal, he seeks $3,391.50. (Id.,
¶19.) Defense counsel Sean M. Buck also provides his declaration stating that
he spent 3 hours on this motion at $595/hour ($1,785). (Buck Decl., ¶¶4-5.)
Defendant is the
prevailing party on this motion. The Court
awards attorney’s fees in the reasonable amount of $3,000. Plaintiffs and their counsel of record, jointly
and severally, are ordered to pay reasonable attorney’s fees and costs to
Defendant, by and through defense counsel.
CONCLUSION
AND ORDER
Defendant Sadia Gomez-Rosas’s motion to expunge
notice of pendency of action (lis pendens) is granted. Defendant’s request for reasonable
attorney’s fees and costs is granted in the amount of $3,000 against Plaintiffs
and their counsel of record.
Defendant shall provide notice of
this order.