Judge Lee W. Tsao, Case Number: 23NWCV00158, Date: 2023-10-05 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00158, Date: 2023-10-05 Tentative Ruling

Case Number: 23NWCV00158 Hearing Date: October 26, 2023 Dept: C

CARDENAS v. CAMPOS

CASE NO.: 23NWCV00158

HEARING: 10/26/23

Defendant MARTHA MORALES’s Motion to Expunge Lis Pendens is OFF-CALENDAR. Defendant’s Request for Attorney’s Fees is DENIED.

Opposing Party to give notice.

This matter was originally scheduled for hearing on October 12, 2023. Plaintiff filed an untimely Opposition on October 11, 2023—one day before the hearing, which the Court read and considered. However, in order to prevent any due process deprivations, this Court permitted Defendant to file a responsive Reply after a brief continuance. Defendant was ORDERED to file a Reply brief by no later than October 19, 2023. Plaintiff was permitted leave to file a Supplemental Opposition by no later than October 23, 2023. Notwithstanding, as of October 24, 2023, no further briefing has been filed/lodged with this Court.

The Motion to Expunge Lis Pendens is MOOT. A Request for Dismissal of the Entire Action of All Parties and All Causes of Action was FILED on October 5, 2023. “Following entry of a dismissal of an action by a plaintiff under Code of Civil Procedure section 581, a trial court is without jurisdiction to act further in the action except for the limited purpose of awarding costs and statutory attorney’s fees. [Citations Omitted.]” (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405.) Consequently, the Court’s jurisdiction is limited to determining whether Defendant is entitled to attorney’s fees under CCP §405.38.

Defendant seeks attorney’s fees and costs in the amount of $6,521.96 under CCP §405.38.

“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.” (Ibid.) Attorney’s fees are authorized if a lis pendens is withdrawn before a ruling on the motion to expunge. (See Castro v. Sup. Ct. (2004) 116 Cal.App.4th 1010, 1014.)

Here, the lis pendens was not withdrawn. As indicated above, for reasons unknown to this Court, Plaintiff elected to dismiss the entire action without prejudice on October 5, 2023.

In an untimely Opposition filed one day before this hearing (October 11, 2023), Plaintiff does not argue that attorney’s fees should not be awarded. Plaintiff merely argues that fees should not be awarded against Plaintiff’s Counsel, and that the fees amount should be reduced.

“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, we adopt the practical approach to 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. To determine litigation objectives, it is not enough simply to consider that the lis pendens has been withdrawn; the court must consider and decide whether the moving party would have prevailed on the motion.” (Castro v. Sup. Ct. (2004) 116 Cal.App.4th 1010, 1023.)

Because Plaintiff has dismissed the entire action, the Court finds that the imposition of attorney’s fees and costs are not warranted under section 405.38.

Defendant’s request for attorney’s fees and costs is DENIED.