Judge Lee W. Tsao, Case Number: VC054209, Date: 2023-08-29 Tentative Ruling

Judge: Lee W. Tsao, Case: VC054209, Date: 2023-08-29 Tentative Ruling

Case Number: VC054209 Hearing Date: August 30, 2023 Dept: SEC

DLP brothers v. hernandez et al.

CASE NO.: VC054209

HEARING: 8/30/23 @ 1:30 PM

Interested Party’s Motion to Expunge Lis Pendens is GRANTED. Interested Party’s request for sanctions is DENIED.

Moving Party to give NOTICE.

Interested Party Jeremias Alexander Lara (Lara) moves to expunge lis pendens pursuant to CCP § 405.30.

Background

This is a 2009 breach of contract claim between Plaintiff DLP Brothers, Inc. (Plaintiff) and Defendants Alejandro Hernandez and Lakeland Financial (collectively Defendants). The lawsuit concerns a $75,000.00 oral loan agreement that Defendants would repay Plaintiff. Default judgment was entered on November 9, 2010. A notice of pendency of action was filed on November 15, 2011 concerning the real property recorded as Lot 301, Tract No. 21870 as per Map 593. Page 28-41 of Los Angeles County, CA, despite no mention of the property in the Complaint. Plaintiff applied for an order to examine Yumi Hernandez as a third party who had possession or control of property belonging to the judgment debtor on July 14, 2011. Alejandro Hernandez and Yumi Hernandez were examined on August 22, 2018, however, the examination was “held and continued” to November 15, 2011. On November 15, 2011, the Court noted that the examination was taken off calendar because Plaintiff’s counsel appeared “but then leaves the court and does not return.”

Legal Standard

In a proceeding to expunge lis pendens, “the 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.” (CCP § 405.32.)

Discussion

Here, Lara moves to expunge the lis pendens on the property commonly known as 1651 Crest Vista Drive, Monterey Park, CA 91754 and described as Lot 301, Tract No. 21870 as per Map 593. Page 28-41 of Los Angeles County, CA. The initial burden is on the party claiming the interest in the property to prove their claim by a preponderance of the evidence. Plaintiff has not submitted any evidence or opposition to the Motion to Expunge. Thus, the Court must order Plaintiff’s Notice of Pendency be expunged.

Sanctions

“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.)

Here, Plaintiff DLP Brothers, Inc. was dissolved in 2016. Therefore, no sanctions can be awarded.

Accordingly, Interested Party’s Motion to Expunge Lis Pendens is GRANTED. Interested Party’s request for sanctions is DENIED.