Judge: Mark H. Epstein, Case: 21SMCV01405, Date: 2023-04-11 Tentative Ruling

Case Number: 21SMCV01405    Hearing Date: April 11, 2023    Dept: R

The demurrers to the first, second, and fifth causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.  The demurrer to the third and fourth causes of action are SUSTAINED WITH LEAVE TO AMEND.  The motion to expunge the lis pendens is GRANTED.  Bond is set in the amount of $1000.

This case has been here before.  The court will not recite the pleadings again, but refers the reader to the prior orders.  These demurrers are brought by the parties that bought the subject property at the foreclosure sale.  Plaintiff’s request for judicial notice is GRANTED.  The court need not resolve the objections to the Zilbertstein declaration as neither motion turns on it. 

Plaintiff concedes that injunctive relief is a remedy, not a cause of action.  To the extent that plaintiff seeks such relief, he must allege an underlying cause of action.  Accordingly, the first cause of action cannot survive and the demurrer to that cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.  However, injunction can be pled as a remedy to an appropriate cause of action.

Plaintiff also admits that only the third and fourth causes of action can be alleged as against these defendants.  Accordingly, the demurrers by these defendants as to all other causes of action are SUSTAINED WITHOUT LEAVE TO AMEND. 

As to the third cause of action, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  The allegations in that UCL cause of action do not seem to involve defendants here, who took no part in the allegedly wrongful activity.  If plaintiff can allege wrongful conduct by them, plaintiff may do so.  This MOOTS the motion to strike.

The demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.  The declaration sought (the parties’ respective rights and duties under the Bankruptcy stipulation) does not involve these defendants.  But that is not to say that there is not some declaration that might apply to them.  Accordingly, as framed, the cause of action does not lie as to these defendants, but leave to amend is granted in that plaintiffs might be able to reframe the issue so that it does.  The court notes that to this extent, plaintiff does not seek monetary damages against the demurring defendants, which is a good thing inasmuch as there seems to be no basis to seek such damages.  It does appear that to the extent that plaintiff is seeking the property back (whether or not plaintiff might actually be able to obtain such relief), a declaration is not an improper request.

As to the motion to expunge, that remains live.  As long as the lis pendens is on file, defendants are harmed and (as the people on the deed) they have standing to seek an order expunging it.  In a lis pendens motion, the court must decide two questions.  The first is whether the case involves title.  If not, then the lis pendens should be expunged without bond.  That decision is made predominantly on the allegations, inasmuch as the plaintiff is the master of the complaint.  If the case is one involving title, then the court must consider if the plaintiff is likely to succeed on the merits.  This is an evidence-based inquiry and the court must weigh the evidence.  The burden of proof is on the opposing party—that is, the party who filed the lis pendens.  (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314.)

As to the merits, this case is odd.  For the reasons set forth above, plaintiff cannot show that the moving defendants did anything wrong—indeed, plaintiff is not even really so alleging.  But that does not end the inquiry.  If title will be restored to plaintiff should plaintiff prevail against the other defendants, then (a) it is a case involving title and (b) plaintiff can attempt to show a probable likelihood of success as to the other defendants and therefore potentially the restoration of title.  The point is to ensure that anyone buying the property understands that title may revert to plaintiff such that they are on notice of the danger; the reason that the title might revert is not germane to the purchaser who finds that they paid consideration but own no property due to this litigation.

Here, the court believes that the case does involve real property.  Plaintiff does seek to have title restored.  However, on the merits, plaintiff is not likely to prevail.  For the reasons discussed in some detail in the order denying the preliminary injunction, which the court incorporates here, plaintiff has very little chance of winning this suit, at least based on the record thus far.  Because plaintiff is not likely to succeed on the merits, the lis pendens must be expunged.

The amount of the bond is in the court’s discretion.  Because the court believes that plaintiff’s case for title is very weak, especially given that title has passed to the moving defendants, the court will set a low bond.  Specifically, the bond amount is $1000.

Because defendants were able to expunge the lis pendens, they are entitled to fees.  However, they cannot get fees by way of a request in the reply.  They may make a fee motion, but it must be separate and supported by evidence as to the amount.  The court will state, however, that on first glance the request of $2535 appears reasonable.  That is not binding; the court may change its mind when the motion is brought and the opposition is read.  The actual award could be lower or higher, and fees on fees might well be appropriate.  It might be wise for plaintiff to concede the fees and moot out that part of the motion before the fees grow.