Judge: Lee W. Tsao, Case: 22NWCV01522, Date: 2023-03-08 Tentative Ruling

Case Number: 22NWCV01522    Hearing Date: March 8, 2023    Dept: C

THEE AGUILA, INC. v. PICO RIVERA FIRST MORTGAGE INVESTORS, LP

CASE NO.:  22NWCV01522

HEARING:  3/8/23 @ 10:30 AM

#1

TENTATIVE RULING

Defendants Mercury Bowl, LLC and Green Rivera, LLC’s motion to expunge lis pendens is GRANTED.  Attorney’s fees and costs are imposed against Plaintiff, in the sum of $1,260.00, payable to Defendants within 30 days.

Moving Parties to give NOTICE.

Defendants Mercury Bowl, LLC and Green Rivera, LLC move to expunge lis pendens pursuant to CCP § 405.30 et seq.

When a motion to expunge lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a real property claim, and establish by a preponderance of the evidence the probable validity of the claim. (CCP §§ 405.32 and 405.31; Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 648.)  The decision regarding the likelihood that a plaintiff will prevail, as to a motion to expunge, reflects trial courts’ evaluations of the record, which appellate courts will review for substantial evidence, but they will reweigh moving and opposing parties’ conflicting evidence or adjudge credibility of witnesses. (Howard S. Wright Construction Co. v. Sup. Ct. (2003) 106 Cal.App.4th 314, 320.)

Plaintiff’s lender, Pico Rivera First Mortgage Investors (“Pico Rivera”), took title to the Property through a foreclosure in 2017.  (Ex Parte RJN Ex. 4.)  On November 20, 2019, Pico Rivera transferred the Property to Defendants Mercury Bowl, LLC, and Green Rivera, LLC.  (Ex Parte RJN Ex. 5.)

Plaintiff first recorded a lis pendens on the Property on December 4, 2019, in connection with Thee Aguila, Inc. v. Blackwood, et al., LASC Case No. 19NWCV00417.  (Reply RJN, Ex. 1.)  Defendants successfully moved to expunge the first lis pendens.  (Reply RJN, Ex. 2.)  Plaintiff then recorded the second lis pendens on August 19, 2022, in connection with Aguila v. Pico Rivera First Mortgage Investors, LP, et al., LASC Case No. 22NWCV00638.  (Reply RJN, Ex. 3.)  Plaintiff recorded a withdrawal of the second lis pendens after he dismissed that case.  (Case Decl., ¶¶ 4-5, Exs. 1-2.)  Plaintiff then recorded the current lis pendens on the same day he recorded the withdrawal of the second lis pendens.  (RJN, Ex. 5.)

On February 9, 2023, Plaintiff served a Notice of Pendency of Action Pursuant to CCP § 405.20 upon Defendants.  (RJN, Ex. 6.)

Plaintiff carries the burden of showing that the complaint alleges a real property claim and has the burden of establishing by a preponderance of the evidence the probability of Plaintiff’s claim.

Plaintiff’s Complaint alleges that Defendants wrongfully foreclosed upon the property at issue, and seeks to Quiet Title.  Therefore, the Complaint alleges a real property claim.

In opposition, Plaintiff submits his declaration, attesting that he was not given notice of the bankruptcy relief from stay motion in the Malley bankruptcy, which resulted in Plaintiff losing title to the property.  (Aguila Decl., ¶ 1.)

In reply, Defendants submit proof that the bankruptcy Stay was retroactively annulled by the Bankruptcy Court, and Plaintiff’s appeal of that decision was denied by the Bankruptcy Appellate Panel.  “After appeal of that order to the United States Bankruptcy Appellate Panel of the Ninth Circuit (BAP), the BAP dismissed the appeal, finding that TAI [Thee Aguila, Inc.] lacked standing in that (a) it failed to identify any particularized or concrete injury arising from the annulment of the stay or the bankruptcy court’s order denying reconsideration, (b) it is neither the debtor, nor a creditor of the Debtor or the bankruptcy estate; and (c) it is a nonparty to the bankruptcy that sought to utilize Debtor’s stay as a shield against the foreclosure of the property. It found, in sum, that TAI had no legal right to protection from the automatic stay in Debtor’s bankruptcy stay, and any decision to annul the stay cannot give rise to an invasion of a legally protected interest.  (Reply RJN, Ex. 6, 11/28 Order at p. 4 in Pico Rivera First Mortgage Investors LP v. Aguila, Santa Barbara Superior Court, Case No. 18CV0495.) 

Based on the evidence submitted, the court finds that Plaintiff failed to carry its burden of establishing by a preponderance of the evidence the probability of Plaintiff’s claim.

Accordingly, the motion is GRANTED. 

“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.”  (CCP § 405.38.)

Defendants, as the prevailing parties, seeking fees and costs in the sum of $3,730.00.  (Case Decl., ¶ 8.)  The court finds this amount is excessive, as the arguments made in this motion repeat those made in Defendant’s previously filed demurrer (to be heard on August 22, 2023).  Accordingly, attorney’s fees and costs are imposed against Plaintiff, in the sum of $1,260.00, payable to Defendants within 30 days.