Judge Mark A. Young, Case 20SMUD00935 2023-03-29 Tentative Ruling

Judge: Mark A. Young, Case: 20SMUD00935, Date: 2023-03-29 Tentative Ruling

Case Number: 20SMUD00935 Hearing Date: March 29, 2023 Dept: M

CASE NO.: 20SMUD00935

MOTION: Motion to Expunge Lis Pendens

HEARING DATE: 3/29/2023

Legal Standard

Any party¿or a non-party having an interest in the property affected by a notice of lis pendens¿may move for expungement¿any time after the lis pendens is recorded.¿(CCP, § 405.30.)¿ A lis pendens must be removed for being improper on account of: (a) the¿pleading on which the notice is based¿not containing a real property claim, assuming the allegations to be true; or, (b) the claimant not being able to establish by a preponderance of the evidence the probable validity of the real property claim. (CCP, §§ 405.31, 405.32;¿Ziello v. Superior Court¿(1995) 36 Cal.App.4th¿321, 331-332.)

A “real property claim” means the causes of action, if proven, would affect either: (a) title to or the right to possession of specific real property, or (b) the use of an easement identified in the pleading. (CCP, § 405.4.) In determining whether a real property claim has been asserted, the Court engages in a demurrer-like analysis. (Park 100 Investment Group II, LLC v. Ryan¿(2009) 180 Cal.App.4th 795, 808.)

When questioning the evidentiary merit of a claim, the claimant who filed the lis pendens has the burden of proof. (CCP § 405.30.) Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate: (1) the action affects title to or right of possession of the real property described in the notice; (2) in so far as the said notice is concerned, the party recording the notice has commenced the action for a proper purpose and in good faith; and (3) the probable validity of the real property claim by a preponderance of the evidence. (Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; CCP §405.30; see Burger v. Superior Court¿(1984) 151 Cal.App.3d 1013, 1019 [claimant must substantiate the claim with admissible evidence].) “‘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.” (CCP § 405.32.)

EVIDENTIARY ISSUES

Cross-Complainant’s request for judicial notice is GRANTED as to request nos. 3, 5, 6, 7, 8, and 11. As to the records noticed, the Court does not take judicial notice of the truth of hearsay matters discussed therein. (See Herrera v. Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Otherwise, Cross-Complainant fails to demonstrate that the remainder of the requests are subject to judicial notice, as they are not “official acts” of the legislative, executive, and judicial departments, court records, or otherwise not subject to reasonable dispute. (See Evid. Code § 452(c), (d), (h).) Instead, these documents are discovery responses and other evidentiary facts that require proper foundation before being admitted.

In its reply brief, Cross-Defendant raises for the first time that there are defects with the service of the lis pendens. As defendant did not raise this issue in the moving papers, Cross-Complainant had no fair opportunity to address any purported defect in service. Moreover, Cross-Defendants have had actual notice of the lis pendens since March 21, 2022, over a year before they filed their reply brief. Thus, the Court concludes that this objection to the lis pendens has been waived. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail).

In addition, counsel Perry Wander’s March 24, 2023, declaration in opposition to the reply brief is stricken. The Rules of Court contemplate only moving, opposition, and reply papers. Cal. R. of Court 3.1113(d). As there are no sur-replies or other pleadings to respond to a reply permitted by the Code of Civil Procedure or the Rules of Court, the declaration is stricken from the record. Counsel is advised not to file such supplemental briefs in the future.

Analysis

Discussion

Plaintiff/Cross-Defendant Palms contends that Defendant/Cross-Complainant Campos cannot establish, by a preponderance of the evidence, the probable validity of his real property claims. Following Cross-Defendant’s successful anti-SLAPP motion, the Cross-Complaint has five remaining causes of action – violation of the tenant anti-harassment ordinance, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), quiet title on a leasehold interest, and specific performance. Cross-Complainant’s quiet title claim states a real property claim. The specific performance cause of action seeks the same relief. Cross-Complainant must therefore show the validity of his quiet title claim.

The elements of a quiet title claim are: (1) description of the property; (2) the claimant’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (CCP § 761.020.)

Here, the Cross-Complaint “seeks a judicial determination that [he] has a leasehold interest in the subject property, along with the right to reoccupy the property when construction per the THP is completed. Accordingly, […he] asks the Court for a ruling that [his] title is superior to any interest that is claimed by the [Cross-]Defendant(s).” (CC ¶ 149, see ¶ 152 [specific performance seeks same relief].)

The Cross-Complaint alleges that since the landlord was forced to abandon his Ellis Act strategy for regaining possession of the rent-controlled apartment, Cross-Defendant attempted to use a Tenant Habitability Plan (THP) as a “loophole” to evict Cross-Complainant. (CC ¶ 49.) Los Angeles Housing Community Investment Department (“HCIDLA”) granted the landlord’s request to perform rehabilitation and construction of the subject property and submitted to the City a THP which the city approved. (¶ 54.) The THP required the tenant to vacate the premises for remodeling of his unit, and the right to return to his rent-controlled unit after the remodeling, at the same rental rate. (Id.) The landlord then served a three-day Notice to Quit on Campos which was solely based on the approved THP. Cross-Complainant admits that he did not move in response to this THP. (¶ 56.)

Cross-Complainant argues that the subject three-day notice to quit failed to strictly comply with the statutory requirements of LAMC section 151.09C.3, which provides:

C. In any action to recover possession of a rental unit, the landlord shall serve on the tenant a written notice setting forth the reasons for the termination. The written notice shall be as described in Civil Code Section 1946 or Code of Civil Procedure Sections 1161 and 1161a. The notice shall be given in the manner prescribed by Code of Civil Procedure Section 1162 and must also comply with the following…

[¶¶]

3. When a termination of tenancy is based on the ground set forth in Section 151.09 A.9. of this Code, the landlord shall file with the Department a declaration on a form prescribed by the Department that sets forth the address of the rental unit, the name of the tenant, a copy of the Tenant Habitability Plan accepted by the Department, documentation of the landlord's good faith efforts to provide notice pursuant to Section 152.00 et seq. of this Code, documentation of efforts to provide relocation assistance, if applicable, and the reason for the termination with specific facts, including but not limited to the date, place, witnesses and circumstances concerning the reason for termination. This declaration shall be served on the tenant in the manner prescribed by Section 1162 of the California Code of Civil Procedure in lieu of the notice required in Subdivision 1. of this subsection.

LAMC section 151.09 relevantly states:

A. A landlord may bring an action to recover possession of a rental unit only upon one of the following grounds…

9. The landlord, having complied with all applicable notices and advisements required by law, seeks in good faith to recover possession so as to undertake Primary Renovation Work of the rental unit or the building housing the rental unit, in accordance with a Tenant Habitability Plan accepted by the Department, and the tenant is unreasonably interfering with the landlord's ability to implement the requirements of the Tenant Habitability Plan by engaging in any of the following actions:

a. The tenant has failed to temporarily relocate as required by the accepted Tenant Habitability Plan[.]

Thus, if a tenant fails to vacate pursuant to a THP, the landlord must file a Declaration of Intent to Evict for Failure to Re-Locate Under a THP to the HCIDLA. The landlord must then obtain an approval and serve the form and attachments on the tenant pursuant to Code of Civil Procedure section 1161. The Cross-Complaint contends that the landlord failed to strictly comply with the service requirements for the THP. (CC ¶¶ 58-61.)

Cross-Complainant Campos fails to evidence this lack of service. He contends that on December 18, 2020, Plaintiff served Campos a Three (3) day Notice to Cure or Quit, including an election to declare a forfeiture of the rental agreement, but not including a Declaration of Intent to Evict for Failure to Re-Locate Under a Tenant Habitability Plan, as required by LAMC 151.09C.3, or a Tenants Right to Relocation Assistance pursuant to Code of Civil Procedure section 1946.2(d)(4). In support of this contention, Campos refers to his own declaration and his counsel’s declaration. Specifically, Campos cites Mr. Wander’s Declaration at paragraph 3 (discussing retention as pro-bono counsel and making no comment on this service) and Mr. Campos’ Declaration at paragraphs 6-7. However, Campos failed to attach his own declaration supporting his denial that he received such a declaration. Notably, Campos submits a document purporting to be his declaration, but is in fact a declaration by Counsel. Counsel does not have the requisite personal knowledge to lay the foundation for this lack of service. (See Wander Decl., ¶¶ 20-26.) Since there is no admissible evidence regarding what was served on Campos (or was not served), Campos fails to meet his burden of proof on this motion.

Furthermore, Campos cites to discovery responses to support the lack of service. Campos’s counsel declares that Cross-Complainant served a Request for Production of Documents (RPD) requesting Plaintiff produce the form required to be used to evict a tenant under the THP. (See Wander Decl., ¶ 26.) Counsel contends that Plaintiff responded that the request was harassing, and did not produce it “as it does not exist.” Ignoring the fact that these discovery responses are not subject to judicial notice, and turning to the substance of Plaintiff’s responses, the Court cannot locate this response. There are six requests cited. No requests specifically sought the “form required to be used to evict a tenant under the THP.” The requests seek all documents 1) “evidencing PLAINTIFF’s [THP] application regarding the renovation of the PREMISES”; 2) “evidencing PLAINTIFF’S construction permit issued”; 3) “filed with City of Los Angeles regarding the development of the condominiums”; 4) “evidencing PLAINTIFF’S application for renovations of the premises pursuant to the Ellis Act” including eight specific documents; 5) “evidencing PLAINITFF’S recording of a subdivision tract map with the City of Los Angeles regarding the renovation of the Premises”; and 6) a copy of the surveillance video around the time of the posted notice. Such categories related to the development and renovations and would not require production of any notices served on Campos. Thus, there is no evidence of any factually devoid discovery responses that would support Campos’ position.

Furthermore, Request for Admissions (RFAs) nos. 1 and 3 specifically relate to Plaintiff’s failure to obtain the required Declaration of Intent to Evict for Failure to Re-Locate Under a Tenant Habitability Plan. However, Plaintiff only objected to this request, and did not admit or deny the request. The Court cannot use this non-admission to infer that Plaintiff did not obtain or serve that Declaration. Certainly, these objections do not make it more likely than not that Plaintiff failed to serve the form.

While the instant claims are not barred by res judicata, as the default judgment was vacated, and possession is still put at issue by the instant Cross-Complaint, Campos still failed to substantiate his real property claim with admissible evidence. As discussed, Campos fails to submit evidence that forms the crux of his claim: the “defective” 3-day notice-to-quit pursuant to Campos’s failure to re-locate. Since Campos has failed to meet his burden, the motion to expunge must be granted.

Accordingly, Plaintiff’s motion to expunge the lis pendens is GRANTED.

Attorneys’ Fees

Code of Civil Procedure section 405.38 provides “[t]he 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.)

Plaintiff requests an award of attorneys' fees and costs in the amount of $4,035.00 for bringing this motion to expunge the Lis Pendens. Plaintiff’s counsel declares that Plaintiff has incurred attorneys' fees in the amount of $1,800.00 to prepare the notice, motion and declaration, and expects to incur an additional $2,175.00. Counsel charges an hourly rate of $725.00. (Goldberg Decl., ¶ 10.) Further, Plaintiff incurred $60.00 of costs. The Court finds that the anticipated amount for a reply brief and hearing is unreasonably high, in light of the filings and issues raised. Accordingly, the Court will award reasonable attorneys’ fees in the reduced total amount of $2,060.00, inclusive of costs.