Judge: Michael E. Whitaker, Case: 22SMCV01184, Date: 2023-08-17 Tentative Ruling

Case Number: 22SMCV01184    Hearing Date: August 17, 2023    Dept: 207

TENTATIVE RULING

DEPARTMENT                     207

HEARING DATE                  August 17, 2023

CASE NUMBER                   22SMCV01184

MOTION                                Motion to Expunge Lis Pendens

MOVING PARTY                 Defendant Wilmington Savings Fund Society,                                                       FSB, as Trustee for Stanwich Mortgage Loan                                                        Trust

OPPOSING PARTIES           Plaintiffs Kasra Vahmi and Bersadeh Bagheri

Background

Defendant Wilmington Savings Fund Society, FSB, as trustee for Stanwich Mortgage Loan Trust (“Defendant”) purchased the property at issue at a trustee’s sale, following the prior owner’s loan default. 

Defendant previously filed two unlawful detainer actions against Plaintiffs Kasra Vahmi and Bersadeh Bagheri (“Plaintiffs”), who are currently in possession of the property.  The first, action 19SMUD00192, was dismissed.  This unlawful detainer action then gave rise to a malicious prosecution action filed by Plaintiffs, 20SMCV00691, which is still ongoing.

Defendant filed a second unlawful detainer case, 19SMUD02217, which was tried to a jury.  The jury returned a verdict in Defendant’s favor, finding Plaintiffs did not have a right to possess the property.  In that action, Plaintiffs argued they had the right to possess the subject property as bona fide tenants under the Protecting Tenants at Foreclosure Act (“PTFA”).  Plaintiffs’ appeal of the judgment is pending.

Plaintiffs filed suit in this case on July 25, 2022, bringing causes of action for quiet title, declaratory relief and injunctive relief, largely reiterating arguments raised in the second unlawful detainer action.  Notably, the complaint directly references and critiques the unlawful detainer action. (See Complaint ¶ 15 [“UD2 proceeded to trial, where the judge gave an erroneous instruction to the jury….”].)  Defendants demurred to the complaint.  The Court sustained Defendant’s demurrer, on the basis that Plaintiffs’ right to possession had already been litigated in the prior unlawful detainer action, but granted Plaintiffs leave to amend to pursue a theory that they had a contractual right to purchase the property.

Plaintiffs filed a First Amended Complaint, to which Defendant demurred.  The Court sustained Defendant’s demurrer on the basis that Plaintiffs’ first amended complaint made clear that Plaintiffs were improperly attempting to relitigate the issues already decided in the unlawful detainer action.  The Court noted that “Plaintiff’s claim to a right to purchase the property stems from their status as bona fide tenants under PTFA” which had already “been extensively litigated in the 19SMUD02217 action.”  (See Minute Order, April 11, 2023, at p. 4.)  The Court also noted that the FAC again “attacks the validity of the jury verdict reached in the 19SMUD02217 action[.]”  (Ibid.)  The Court did not grant Plaintiffs further leave to amend, on the ground that Plaintiffs failed to demonstrate how they could amend the complaint. 

Judgment for Defendant as then entered on April 14, 2023.  Plaintiffs filed a notice of appeal on June 20, 2023.

REQUEST FOR JUDICIAL NOTICE

Courts may take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed.  (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)  “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.”  (Ibid.)  Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions.  (Ibid.)

Moreover, judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)

Defendant requests that the Court take judicial notice of four documents: (1) Deed of Trust recorded May 4, 2006, in the Los Angeles County Recorder’s Office, bearing Instrument No. 06-0981972; (2) Trustee’s Deed Upon Sale recorded October 18, 2018, in the Los Angeles County Recorder’s Office, bearing Instrument No. 20181088556; (3) Notice of Entry of Judgment filed on April 26, 2022 in Los Angeles Case No. 19SMUD02217; and (4) Notice of Pending Real Property Action recorded August 11, 2022, in the Los Angeles County Recorder’s Office, bearing Instrument No. 20220807926.

The Court therefore GRANTS Defendant’s unopposed request for judicial notice.  Requests 1, 2, and 4 are properly the subject of judicial notice as recorded documents whose authenticity is not reasonably disputed, and Request 3 is proper as a court record.

LEGAL STANDARD

Code of Civil Procedure section 405.20 provides:  “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. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action.”  “A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.”  (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.)  “[T]he filing of a lis pendens usually clouds the title to the property and prevents its transfer until the litigation is resolved or the lis pendens is expunged.”  (Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523.)

“A court shall order expungement of a lis pendens if the pleading on which the lis pendens is based does not state a real property claim, if the claimant fails to establish the probable validity of the claim on which the lis pendens is based, or if the giving of an undertaking would secure adequate relief to the claimant. A nonstatutory ground also exists, such that a party alleging a lis pendens is void and invalid for defective service may move for expungement on that basis.”  (Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263 [cleaned up].)

            “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. In making this determination, the court must engage in a demurrer-like analysis.  Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim.  Review involves only a review of the adequacy of the pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed as on a demurrer.  Therefore, review of an expungement order under section 405.31 is limited to whether a real property claim has been properly pled by the claimant.”  (Kirkeby v. Superior Court, supra, 33 Cal.4th at pp. 647–648 [cleaned up].)

ANALYSIS

1.      LIS PENDENS

In cases, like this, where the plaintiff has already lost in the trial court, the plaintiff can only establish the probable validity of the claim if “the trial court’s ruling will ‘probably’ be overturned on appeal.” (Mix v. Superior Court (2004) 124 Cal.App.4th 987, 989.)  “Of course, it is going to be a rare case indeed where the trial court will be willing to state on the record that its decision in a case will “probably” be reversed. Ninety-nine-point-ninety-nine percent of the time expungment will be required.”  (Ibid.)

Plaintiffs argue in Opposition that they have met this heavy burden, because the Court granted them leave to amend the original complaint to state its case that it had a contractual right to purchase the property, but then “this court’s contradictory later order sustaining the demurrer was erroneous, and likely to be overturned on appeal.”  (Opp. at p. 3:22-23.) 

The Court’s later order sustaining the demurrer was not erroneous.  The original complaint and the First Amended Complaint made clear that Plaintiffs filed this action in an improper attempt to collaterally attack the jury verdict in the second unlawful detainer action, and Plaintiffs’ contractual claim was based on Plaintiffs’ right to possession, which was already litigated in that action.  (See Minute Order, April 11, 2023.) 

Because Plaintiffs have failed to establish that this Court’s judgment will probably be overturned on appeal, the Court grants Defendant’s Motion to Expunge the Lis Pendens.

2.      ATTORNEYS’ FEES

Pursuant to Code of Civil Procedure section 405.38, “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.”

Defendant requests $1,010.50 in attorneys’ fees associated with bringing the instant motion, representing 4.7 hours at a rate of $215 per hour.  Defendant brings its request on the basis that “Plaintiffs have not acted with substantial justification, given their improper collateral attack on another court’s judgment.”  (Motion at p. 9:19-21.)  Plaintiffs have not opposed Defendant’s request for attorneys’ fees. 

Notwithstanding, the Court agrees, that in light of the “ninety-nine-point-ninety-nine percent” odds against them, and because Plaintiffs’ only argument is that the Court granted them leave to amend the complaint, and then subsequently sustained Defendant’s demurrer to the amended complaint, Plaintiffs did not act with substantial justification or establish any other circumstances that make the imposition of attorneys’ fees and costs unjust.

As such, the Court grants Defendant’s request for attorneys’ fees in the amount of $1010.50

Conclusion

Based on the foregoing, the Court grants Defendant’s motion to expunge the lis pendens and orders the Notice of Pending Real Property Action expunged pursuant to Code of Civil Procedure section 405.35. [1] 

Further, the Court orders Plaintiffs to pay Defendant, through counsel for Defendant, attorneys’ fees in the amount of $1,010.50 within 30 days of notice of the Court’s ruling.   

            Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED: August 17, 2023                                                      ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court