Judge: Mark A. Young, Case: 25SMC01352, Date: 2025-05-30 Tentative Ruling

Case Number: 25SMC01352    Hearing Date: May 30, 2025    Dept: M

CASE NAME:           Vititoe, v. Sawyer, et al.

CASE NO.:                25SMC01352

MOTION:                  Motion to Expunge Lis Pendens

HEARING DATE:   5/30/2025

Legal Standard

A¿lis¿pendens¿is a¿recorded instrument¿(“Notice of Pending Action”), recorded in the office of the county recorder where land is located, that gives¿constructive notice¿of a pending lawsuit affecting title to described real property. (Gale v. Superior Court¿(2004) 122 Cal.App.4th 1388, 1395.) “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.” (CCP § 405.20.) Anyone having an interest in the property affected by a lis pendens, whether or not a party to the pending lawsuit, may move to expunge the lis pendens any time after it is recorded. (CCP § 405.30.) A lis pendens may be expunged on any of the following grounds: (1) defects in the statutory service and filing requirements; (2) the complaint does not contain a real property claim; (3) the claimant cannot prove the probable validity of the real property claim by a preponderance of the evidence; and (4) “adequate relief” can be “secured to the claimant by the giving of an undertaking.” (CCP §§ 405.23, 405.31, 405.32, 405.33; McKnight v. Sup.Ct. (Faber)¿(1985) 170 Cal.App.3d 291, 303 [recognizing defective servicing and filing requirements as grounds for expungement].) The motion may be made even while an appeal is pending. (Peery v. Superior Court (1981) 29 Cal.3d 837, 842.)  

“At any time after notice of pendency of an action has been recorded pursuant to this title or other law, the notice may be withdrawn by recording in the office of the recorder in which the notice of pendency was recorded a notice of withdrawal executed by the party who recorded the notice of pendency of action or by the party's successor in interest. The notice of withdrawal shall be acknowledged.” (CCP, § 405.50.) 

The claimant who filed the lis pendens has the burden of proof where the motion is made on the grounds that the action does not involve a real property claim or the action lacks probable validity. (CCP § 405.30.) If the claimant fails to meet his or her burden, the court must order that the notice be expunged and may not order an under taking be given as a condition of expunging the notice. (CCP § 405.32.) 

Code of Civil Procedure section 405.23 provides: “Any 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.” Section 405.22 lists three service and filing requirements. First, before recording a lis pendens, the claimant must “cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll . . . .” Second, immediately after recording, the claimant must then file a copy of the lis pendens in the court in which the action is pending. (CCP § 405.22.) Finally, the claimant must also immediately serve the lis pendens in the same manner upon each adverse party later joined in the action.

“ ‘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.  

ANALYSIS

Defendant Johnnie L. Sawyer moves to expunge a lis pendens recorded by Plaintiff Travis Vititoe (recorded document number 2025-017052). Plaintiff does not oppose the motion and argues that the motion is moot because he voluntarily withdrew the subject lis pendens. Defendant argues that the motion is not substantively moot because the submitted withdrawal would be invalid under Government Code section 8231.

Plaintiff, however, does not submit a conformed copy of the Withdrawal of Notice of Pendency of Action to show that the recorder’s office has withdrawn the lis pendens as indicated. Absent further proof of the withdrawal, the motion is not moot. Otherwise, Plaintiff does not substantively oppose the motion. Plaintiff therefore fails to show compliant service in response to Defendant’s challenge, or the probable validity of his alleged real property claim. Accordingly, Defendant’s motion is GRANTED.

Even if the motion is substantively moot, the Court must grant sanctions to Defendant as a prevailing party on the lis pendens motion. (CCP § 405.38.) Defendant requests fees in the amount of $8,925.09, The Court finds these fees to be unreasonably high, as counsel’s supplemental declaration includes work unrelated to the lis pendens motion and for unnecessary work in reply (unnecessary since Plaintiff did not substantively oppose the motion). The Court finds that a reasonable fee in this instance would be $2,460.00, inclusive of costs. Accordingly, the court will grant sanctions in the reduced total amount of $2,460.00 against Plaintiff Travis Vititoe. Sanctions are payable to Defendant’s counsel within 30 days.