Judge Mark A. Young, Case Number: SC127926, Date: 2024-03-20 Tentative Ruling

Judge: Mark A. Young, Case: SC127926, Date: 2024-03-20 Tentative Ruling

Case Number: SC127926 Hearing Date: March 20, 2024 Dept: M

CASE NAME: Ketikyan v. Khachatryan, et al.

CASE NO.: SC127926

MOTION: Motion to Refile Lis Pendens

HEARING DATE: 3/20/2024

Legal Standard

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice.” (CCP, § 405.30.) “[T]he 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. (CCP § 405.32.) After a lis pendens is expunged, a party may not file another lis pendens on the property without leave of court. (CCP § 405.36.)

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.)

“Probable validity” exists when “it is more likely than not that the claimant will obtain a judgment on the claim.” (CCP, § 405.3.) 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 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].)

“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.)

Analysis

Plaintiff Artur Ketikyan, through his successor in interest, Anna Sarajyan, moves for leave to refile the Lis Pendens against 530 S. Mapleton, Los Angeles, California, which was the subject of this suit. Plaintiff contends that the parties settled this action in open court on September 26, 2023, minutes prior to trial. The parties placed the material terms of the settlement onto the record. Defendants agreed to pay Plaintiff a total amount of $1,000,000 in exchange for a dismissal of Plaintiff’s lawsuit with prejudice, waiver pursuant to Civil Code section 1542, the parties would otherwise bear their own fees and costs, the parties would not communicate with third parties about the contents of the settlement, the court would retain jurisdiction per Code of Civil Procedure section 664.6, and that the parties would be entitled to attorneys’ fees and costs associated with a motion to enforce the settlement (the “Settlement”). (See Baker Decl., ¶¶ 2-3, Ex. A.) Plaintiff asserts that Defendants have reneged on the settlement, and decided not to comply with the executed settlement agreement because Plaintiff died. Plaintiff is concurrently moving for enforcement of this settlement per Code of Civil Procedure section 664.6.

Plaintiff reasons that the above settlement was binding and provides a basis for a lis pendens. However, Plaintiff does not demonstrate that the breach of the above settlement agreement created a real property claim in his favor. As noted, a real property claim includes an action which would affect title and/or possession of a specific real property or easement. The above terms do not provide Plaintiff with any rights to the subject real property, 530 Mapleton. In fact, as a part of his general release of claims against Defendants, Plaintiff disclaimed any right to the Mapleton property in exchange for $1 million. Therefore, if the court assumes that the settlement agreement is valid, Plaintiff cannot show the probable validity of any claim affecting the title or right to the Mapleton Property.

Accordingly, the motion is DENIED.

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, emphasis added.) The Court will consider Defendants’ claim of attorneys’ fees after considering the merits of Plaintiff’s motion to enforce the settlement.