Judge: Marcella O. Mclaughlin, Case: 37-2023-00035130-CU-OR-CTL, Date: 2024-01-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2023-00035130-CU-OR-CTL LOWE VS DIAS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Expunge Lis Pendens, 12/21/2023

The motion to expunge the lis pendens is GRANTED.

A. As an initial matter, the court notes that the moving papers were filed on December 21, 2023. This was less than 16 court days before the hearing date. Code Civ. Proc. § 1005(b). However, the proof of service shows that the moving papers were timely served on plaintiffs' counsel via email on December 15, 2023 (ROA 64) – i.e., 16 court days plus 2 additional court days before the hearing date. Code Civ.

Proc. § 1010.6(a)(4). Thus, plaintiffs' arguments regarding insufficient notice are not well taken. In any event, '[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.' Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.

B. Turning to the merits, a party contending that a lis pendens is 'void and invalid' for purposes of Code of Civil Procedure section 405.23 due to defective service may raise this ground in a motion for expungement. J & A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 24-25. Section 405.23 provides that '[a]ny notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.' In this case, the lis pendens recorded on September 12, 2023 is not accompanied by a proof of service.

ROA 59. The failure to record a proof of service with a lis pendens renders the lis pendens 'void and invalid.' See Code Civ. Proc. § 405.23; see also Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263. Accordingly, the lis pendens is hereby expunged.

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