Superior Court of California

County of Los Angeles

LISA BROWN,

Plaintiff,

vs.

NETTIE BUCKNER,

Defendant.

Case No.: BC635818

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 02/07/2017

Trial Date: N/A

Hearing date: October 22, 2024

Moving Party: Defendant Nettie Buckner

Responding Party: None

Motion to Expunge Lis Pendens

The Court considered the moving papers.

The Court GRANTS the Motion for Expungement of Lis Pendens filed by Defendant Nettie Buckner.

Background

On September 30, 2016, Plaintiff Lisa Brown (“Brown”) filed an action against Defendant Nettie Buckner (“Buckner”) and Does 1 through 5 for fraud and equitable lien, relating to the property located at 732 East 74th Street, Los Angeles, CA 90001 (“Property”).

On February 7, 20217, the case was dismissed due to lack of prosecution.

On August 13, 2023, Defendant filed the instant Motion for Expungement of Lis Pendens (“Motion”). No opposition has been filed.

Legal Standard

“A party who asserts a claim to real property can record a notice of lis pendens, which serves as notice to prospective purchasers, encumbrancers and transferees that there is litigation pending that affects the property.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011; Code Civ. Proc., § 405.20.) “A lis pendens acts as cloud against the property, effectively preventing sale or encumbrance until the litigation is resolved or the lis pendens in expunged.” (Ibid.) A real property claim is defined as “the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Code Civ. Proc., § 405.4.)

“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.” (Code Civ. Proc., § 405.30.) The court must order the lis pendens expunged if it finds that (a) there is no real property claim, (b) the claimant did not establish by a preponderance of the evidence the probable validity of the real property claim, or (c) adequate relief can be secured by giving an undertaking. (Code Civ. Proc., §§ 405.31-405.33.) The moving party can file evidence or declarations supporting the motion to expunge. (Code Civ. Proc., § 405.30.)

“Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion” to establish the existence of a real property claim or the probable validity of the underlying claim by a preponderance of evidence. (Code Civ. Proc., §§ 405.30-405.32; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647; Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) A real property claim has “probable validity,” if it is more likely than not that the claimant will obtain a judgment against the defendant on that claim. (Code Civ. Proc., §§ 405.3, 481.190.)

Discussion

Defendant Buckner moves for a court order expunging the lis pendens filed by Plaintiff Brown in 2016 in connection with the instant lawsuit. Defendant argues that Plaintiff failed to withdraw the Notice of Lis Pendens after the lawsuit was dismissed in February 2017.

On September 30, 2016, Plaintiff filed a lawsuit against her sister Nettie Buckner alleging that Buckner had committed fraud by failing to inform her that their mother had assigned the deed to the property located at 732 East 74th Street, Los Angeles, CA 90003 (“Property”) to Buckner. (Complaint; Buckner Decl. ¶ 2.) Buckner states that she was never served with the complaint and did not appear in the case. (Buckner Decl., ¶ 3.) She was also not aware that Plaintiff had filed a Notice of Pendency of Action with the Los Angeles County Recorder at the time of the lawsuit. (Id. at ¶ 4.) In February 2017, the lawsuit was dismissed due to lack of prosecution.

Recently, while considering a second or reverse mortgage on her property located at 3107 Obama Blvd., Los Angeles, CA 90018 (“Home Property”), she learned that Plaintiff had recorded a Notice of Pendency with respect to her Home Property at the time of the lawsuit and never withdrew it. (Id. at ¶ 6.) Defendant was informed that she would not be able to obtain a mortgage on the Home Property without removing the Notice. (Id. at ¶ 7.) Defendant states that she has not communicated with her sister in years and would be unable to communicate with her to discuss this matter. (Id. at ¶ 9.)

The motion is unopposed, and the matter has already been dismissed due to lack of prosecution. Thus, the Court finds it proper to grant Defendant’s Motion.

Accordingly, the Motion for Expungement of Lis Pendens filed by Defendant Nettie Buckner is GRANTED.

It is so ordered.

Dated: October 22, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court