Judge: Melvin D. Sandvig, Case: 21CHCV00940, Date: 2022-09-14 Tentative Ruling
Case Number: 21CHCV00940 Hearing Date: September 14, 2022 Dept: F47
Dept. F47
Date: 9/14/22
Case #21CHCV00940
MOTION TO
EXPUNGE LIS PENDENS
Motion filed on 7/12/22.
MOVING PARTY: Defendant Mary Annette Pickens
RESPONDING PARTY: Plaintiff Lawrence A. Garoutte
RULING: The motion is granted.
The parties are, again, reminded to review the 5/3/19
First Amended General Order Re Mandatory Electronic Filing for Civil. (See 7/29/22 Minute Order, p.2). When e-filing documents, parties must comply
with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through
page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory
Electronic Filing for Civil. See also
CRC 3.1110(f)(4). Defendant and
Plaintiff have failed to bookmark the declaration, exhibits and proof of
service attached to the motion and opposition.
It appears that Defendant attempted to bookmark the reply; however, the
bookmarks are not linked to the first page of each exhibit, declaration,
etc. Failure to comply with these
requirements in the future may result in
matters being placed off calendar, matters being continued so documents
can be resubmitted in compliance with these requirements, documents not being
considered and/or the imposition of sanctions.
This action arises out of a loan agreement between
Plaintiff Lawrence A. Garoutte (Plaintiff) and Defendant Mary Annette Pickens
(Defendant), Plaintiff’s step-mother.
Plaintiff alleges that in or around 1989, Plaintiff and his then
partner, Duane Boyer, purchased and acquired title to real property commonly
known as 22232 Wildwood Place, Chatsworth, California 91311 (the
Property). (Complaint ¶5). On or about 9/5/06, Plaintiff acquired
Boyer’s right, title and interest in the Property. (Complaint ¶6).
In or about April of 2018, Plaintiff obtained a loan from
Defendant in the amount of $35,000 to assist Plaintiff in paying the mortgage
on the Property and other bills.
(Garoutte Decl. ¶4). On 8/13/18,
Plaintiff and Defendant entered into a written agreement which acknowledges
that when Defendant lent Plaintiff the $35,000.00 “the plan” was for Plaintiff
to sell the Property and repay Defendant.
(See Complaint, Ex.A).
However, because Plaintiff preferred not to sell the Property, Defendant
agreed to extend the repayment of the loan until 8/1/20 pursuant to certain conditions
that were to take effect on 9/1/18. Id. The conditions were: (1) Plaintiff would pay
Defendant $2,500.00 on the 1st of each month and Defendant would pay
the mortgage ($1561.91), the HOA dues ($400.00), the homeowners insurance
($95.00) and earthquake insurance ($95.000) with the remaining $350.00 to be
interest on the loan; (2) a $500.00 penalty would be assessed for Plaintiff’s
late monthly payments; and (3) if Plaintiff missed 2 months of payments, the
house was to be placed on the market for sale with Defendant’s knowledge and
involvement. Id. The proceeds of the sale would be used to
first pay Defendant for the loan and the remainder would go to Plaintiff. Id.
The agreement further provided that if Plaintiff refused to put the
Property for sale, Defendant would file/record the quit claim deed for the
Property which was executed and notarized on 4/24/18 and put the Property for
sale and take any proceeds from the sale.
Id.
Plaintiff seems to concede that he stopped making the $2,500.00
monthly payments to Defendant beginning 4/1/20.
(See Complaint ¶¶13-18). Plaintiff
also concedes that in September 2020, he received notice that Pickens intended
to record the 4/24/18 quit claim deed.
(Complaint ¶16). On 12/24/20,
Defendant recorded the 4/24/18 quit claim deed.
(Complaint ¶23, Ex.B). On
12/9/21, Plaintiff filed this action against Defendant for: (1) Cancellation of
Deed, (2) Quiet Title, (3) Recovery of Usurious Interest and (4) Declaratory
Relief. On 12/11/21, Plaintiff served
Defendant with a Notice of Pending Action (Lis Pendens) which was recorded on
12/22/21. (Pickens Decl. ¶8, Ex.1). The Lis Pendens was not filed in this action
until 8/30/22.
Defendant contends that her attorney and Plaintiff’s
prior attorney were in communication in December 2021 and anticipated
settlement of the action. (See
Motion p.5:1-12). However, Plaintiff’s
prior attorney substituted out of the case in March 2022. Id.
Since that time, Defendant contends that Plaintiff has refused to respond
to Defendant’s and Defendant’s attorney’s attempted communications. Id.
On 7/12/22, Defendant filed the instant motion seeking an
order expunging the unfiled Notice of Pending Action (Lis Pendens) which was
served on or about 12/11/21 and recorded by Plaintiff on 12/22/21 regarding
real property commonly known as 22232 Wildwood Place, Chatsworth, CA 91311. Pursuant to Defendant’s ex parte application,
the Court specially set the motion for hearing on 7/29/22. However, due to issues with notice, the
7/29/22 hearing was continued to 9/14/22.
On 8/31/22, Plaintiff filed and served an opposition to the motion.
An opposition was required to be filed and served at
least 9 court days before the 9/14/22 hearing date. CCP 1005(b).
A reply was required to be filed and served at least 5 court days before
the hearing date. Id. Oppositions and replies must be filed and served via a method
reasonable calculated to ensure delivery to the other party not later than the
close of the next business day after filing.
CCP 1005(c). While the filing and
service of the opposition was timely (9 court days before the hearing), the
method of service, regular U.S. mail, does not comply with the requirements of
CCP 1005(c). Presumably, the defective
method of service of the opposition is what caused the late filing and service
of the reply on 9/9/22. Despite the
defective method of service of the opposition and the late filing and service
of the reply, both the opposition and reply have been considered by the Court
in ruling on the motion. See CRC
3.1300(d).
Plaintiff failed to comply with the statutory requirement
that “[i]immediately following the recordation, a copy of the notice [of
pendency of action] shall also be filed with the court in which the action is
pending.” See CCP 405.22. However, such failure is not the basis for
Court’s granting of the motion as Plaintiff has since filed the notice with the
Court and the notice was served on Defendant in December 2021. See CCP 405.23; (Notice of Pendency of
Action filed 8/30/22); (Pickens Decl. ¶8).
“At any time after notice of pendency of action has been
recorded, any party…may apply to the court in which the action is pending to
expunge the notice.” CCP 405.30. The claimant, or the party who recorded the
lis pendens, has the burden of proof under CCP 405.31 and CCP 405.32. Id.; Howard S. Wright Construction
Co. (2003) 106 CA4th 314, 319.
CCP 405.31 provides:
In proceedings under this chapter,
the court shall order the notice expunged if the court finds that the pleading
on which the notice is based does not contain a real property claim. The court
shall not order an undertaking to be given as a condition of expunging the
notice where the court finds the pleading does not contain a real property
claim.
CCP 405.32 provides:
In proceedings under this chapter,
the 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. The court shall not order an undertaking
to be given as a condition of expunging the notice if the court finds the
claimant has not established the probable validity of the real property claim.
Contrary to Defendant’s assertion, the complaint contains
a real property claim. In fact, by law,
Plaintiff was required to file a notice of pendency of action in the office of
the county recorder immediately upon the commencement of an action for quiet
title. See CCP 761.010. However, Plaintiff has failed to meet his
burden of establishing by a preponderance of the evidence the probable validity
of his real property claims for quiet title, cancellation of deed and or
declaratory relief, claims which, if
meritorious, would affect title to the Property. See CCP 405.3; CCP 405.4.
Plaintiff argues that “there is no evidence that Plaintiff missed two payments nor that he refused to initiate
the sale of the Property” in breach of the loan agreement. (See Opposition, p.3:6-7). Plaintiff then seemingly ignores that it is
his burden to establish the probable validity of real property claims by
arguing that “Defendant failed to provide
any support for its position that the Quit Claim deed was validly recorded other
than a vague declaration which fails to specifically identify any breaches of the
agreement nor any demand that Plaintiff list the Property for sale.” (See Opposition, p.3:7-10).
As noted above, Plaintiff’s own complaint seems to
tacitly admit that he stopped making payments to Defendant under the agreement
beginning on 4/1/20. (See
Complaint ¶¶13-18). Additionally,
Plaintiff’s declaration filed in support of the opposition does not state that
he made all payments due to Defendant under the loan agreement. (See Garoutte Decl.). Also, the loan agreement does not require
that Defendant demand that Plaintiff list the Property for sale upon his
default under the loan agreement.
Rather, the loan agreement provides that “[i]f two months of monthly
payment missed the house is to be put on the market for sale with knowledge and
involvement of Pickens.” (Complaint,
Ex.A). In his declaration, Plaintiff
does not state that he listed the property for sale with Defendant’s knowledge
and involvement. (See Garoutte
Decl.). Nor does Plaintiff state that he
is willing to list the Property for sale at this time in order to pay the debt
he never denies owing to Defendant. Id. Further, although it is not her burden to
establish the lack of the probable validity of Plaintiff’s real property
claims, with the reply, Defendant has submitted additional evidence to support
a finding that she properly recorded the 4/24/18 quit claim deed pursuant to
the terms of the loan agreement. (See
Pickens Reply Decl. and Ex.B-F thereto).
While the caption of the motion indicates that Defendant
requests attorneys fees against Plaintiff, such a request is not supported in
the memorandum of points and authorities or in the declaration filed in support
of the motion. Additionally, the Court
finds that Plaintiff was justified in recording the notice of pendency of
action as such was required by law based on the quiet title claim in the
complaint. See CCP 761.010; CCP 405.38. Therefore, Defendant’s request for attorney’s
fees is denied.
Based on the finding that Plaintiff has not established
the probable validity of his real property claims, Plaintiff’s request that
Defendant be required to post an undertaking as a condition of expunging the
lis pendens is denied. See CCP
405.32. Similarly, since Plaintiff did
not prevail on the motion, his request for attorney’s fees is denied. CCP 405.38.