Judge Lynette Gridiron Winston, Case Number: 20STCV11677, Date: 2024-03-28 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 20STCV11677, Date: 2024-03-28 Tentative Ruling

The Court CONTINUES the hearing on Plaintiff’s motion to approve recording of lis pendens to April 30, 2024. Plaintiff must file and serve a supplemental brief addressing the issues identified herein no later than April 8, 2024. Defendants must file and serve a supplemental opposition no later than April 17, 2024. Plaintiff may file and serve a supplemental reply no later than April 23, 2024.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a quiet title action. On March 20, 2020, plaintiff Nobia Joyce (Plaintiff) filed this action against defendants Shawn M. Millner, the Shawn Marie Millner Revocable Trust (collectively, Millner), Laurence Todd (Todd) (Millner and Todd may be collectively referred to as Defendants), and Does 1 through 20, alleging causes of action for quiet title, partition, declaratory relief, and ejectment and damages.

On November 29, 2022, Defendants filed a cross-complaint against Plaintiff, Stephen R. Golden, Stephen R. Golden & Associates, P.C., and Does 1 through 20. On February 3, 2023, Defendants filed the operative amended cross-complaint against the same parties, alleging causes of action for breach of the July 5, 2018 settlement agreement, breach of the August 12, 2018 co-tenant agreement, assault, battery, false imprisonment, negligent infliction of emotional distress, intentional infliction of emotional distress, slander of title, and fraud.

On March 4, 2024, Plaintiff filed a motion to approve recording of lis pendens. On March 5, 2024, Millner opposed the motion. On March 13, 2024, Todd opposed the motion. On March 20, 2024, Plaintiff replied to both oppositions.

“Immediately upon commencement of the action, the plaintiff shall file a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.” (Code Civ. Proc., § 761.010, subd. (b).) “(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.” (Code Civ. Proc., § 872.250, subd. (a).)

“Once a notice of pending action has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending.” (Code Civ. Proc., § 405.36; see also De Martini v. Superior Court (2024) 98 Cal.App.5th 1269, 1276 [holding that Code Civ. Proc., § 405.36 applied even though the prior lis pendens was expunged in a different action.])

Plaintiff seeks the Court’s approval per Code of Civil Procedure section 405.36 for the lis pendens she previously recorded for this action and later filed on May 7, 2020 (the Lis Pendens). Plaintiff indicates that she was involved in a prior action with the Defendants which involved a lis pendens that was later expunged. Upon commencing this action, Plaintiff indicates she recorded and later filed the Lis Pendens. Plaintiff seeks the Court’s approval because the Court of Appeal’s recent decision in De Martini v. Superior Court provides that Code of Civil Procedure section 405.36 applies even when the prior lis pendens was expunged in a different action. Plaintiff indicates that she moved for the Court’s approval soon after learning of the De Martini decision since there was no prior case law requiring a party to seek leave of court to record a second lis pendens when it was filed in a different case.

In opposition,[1] Defendants contend Plaintiff’s motion is an admission that Plaintiff did not comply with Code of Civil Procedure section 405.36, and that Plaintiff admits she failed to comply with the July 5, 2018 order in the earlier case of KC067882 by failing to expunge the prior lis pendens. Defendants then contend Plaintiff was not justified in filing a second lis pendens without leave just because this is a different action, and that De Martini only clarified Code of Civil Procedure section 405.36.

In reply, Plaintiff contends the Lis Pendens should be approved to protect Plaintiff’s interest in her house and to provide notice to the public of the dispute over the underlying property. Plaintiff notes that although Plaintiff’s prior counsel failed to expunge the prior lis pendens as previously ordered, Plaintiff’s current counsel did expunge it after being retained. Plaintiff further notes that the law requires plaintiffs to file a lis pendens for quiet title and partition actions, and contends the fact Plaintiff is seeking the Court’s approval after a recent change in the law does not invalidate the basis for seeking this relief.

A real property claim is a cause of action that, if successful, would affect title to or the right of possession of specific real property or the use of an easement identified in a pleading. (Code Civ. Proc., § 405.5; see Id., § 405.20 [“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.”].) A notice of pendency of action must 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.” (Id., § 405.32; De Martini v. Superior Court (2024) 98 Cal.App.5th 1269, 1278-1279 [“The trial court must order a lis pendens be expunged if the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim. [Citation.]”) "'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." (Code Civ. Proc., § 405.3.)

The law requires plaintiffs to record a lis pendens upon commencing an action for quiet title or partition. (Code Civ. Proc., § 761.010, subd. (b); Id., § 872.250, subd. (a).) Normally, a lis pendens may be recorded by an attorney without the courts’ approval. (See Id., § 405.21.) It is only after a lis pendens has been expunged that the plaintiff must then obtain court approval to record a second lis pendens. (Id., 405.36; De Martini, supra, 98 Cal.App.5th at p. 1276.)

The Court also notes that there does not appear to have been any prior California precedent reaching the same conclusion as the Court of Appeal did in De Martini. In De Martini, the Court of Appeal relied on an unpublished federal opinion, in which the federal district court interpreted Code of Civil Procedure section 405.36 and held that it applied even though the prior lis pendens had been expunged in a different action in a different court. (De Martini, supra, 98 Cal.App.5th at p. 1276, quoting in part Fid. Nat'l Title Co. v. United States SBA (E.D. Cal. 2015) 2015 WL 7077407.) The Court infers from this that there was no prior case law in California that specifically addressed the applicability of Code of Civil Procedure section 405.36 across multiple actions. As such, Plaintiff’s belief that the initiation of a new action otherwise required Plaintiff to record the lis pendens without first seeking court approval was reasonable, especially in light of the requirements of Code of Civil Procedure sections 761.010, subdivision (b), and 872.250, subdivision (a).

However, the Court notes that Plaintiff’s moving papers do not address the requirement of Code of Civil Procedure section 405.32, which requires the Lis Pendens to be expunged unless Plaintiff can establish the probable validity of her claims by a preponderance of the evidence. (Code Civ. Proc., § 405.32; De Martini, supra, 98 Cal.App.5th at pp. 1278-1279.) While a lis pendens generally is required in the context of a quiet title or partition action, (Code Civ. Proc., § 761.010, subd. (b); Id., § 872.250, subd. (a)), and the recording party usually may record a lis pendens without leave of court if they are represented by an attorney, (Id., § 405.21), the present circumstances are different because the Lis Pendens is the second lis pendens Plaintiff has recorded against the subject property, and the first lis pendens was ordered expunged. (Pallack Decl., ¶ 2). Code of Civil Procedure section 405.36 provides that once a lis pendens has been expunged, a claimant must seek leave of court to record any subsequent lis pendens. (Code Civ. Proc., § 405.36.) Accordingly, the preponderance of the evidence standard of proof applies to Plaintiff’s motion, and Plaintiff must submit evidence showing that it is more likely than not that Plaintiff will obtain a judgment against Defendants on her claims to prevail on this motion. (See Id., §§ 405.3, 405.32.)

Considering that Defendant’s motion to expunge lis pendens is pending hearing on April 30, 2024, the Court will continue the hearing on this motion to April 30, 2024, to be heard in conjunction with Defendant’s motion, which requires the same legal standard of proof. Plaintiff must file and serve a supplemental brief providing the necessary evidence under Code of Civil Procedure section 405.32, no later than April 8, 2024. Defendants must file and serve a supplemental opposition and any supporting evidence no later than April 17, 2024. Plaintiff may file and serve a supplemental reply no later than April 23, 2024. The parties should also address whether any undertaking should be required if the Court approves the recording of the Lis Pendens. The briefing ordered as to Plaintiff’s motion will satisfy the briefing requirements as to Defendants’ motion to expunge the Lis Pendens. Thus, no further briefing will be necessary for Defendants’ motion to expunge the Lis Pendens.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Millner’s opposition and Todd’s opposition are largely identical, so the Court will treat them as one and the same for purposes of this motion.