Judge: Michael E. Whitaker, Case: 23SMCV02778, Date: 2024-10-01 Tentative Ruling

Case Number: 23SMCV02778    Hearing Date: October 1, 2024    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute over the sale and ownership of real property.  Plaintiff Vince Flaherty, individually and as successor trustee of the KHG Trust (“Plaintiff”) filed suit on June 22, 2023, alleging Defendant Ken Thayer fraudulently foreclosed on his home and sold it at a trustee’s sale on June 27, 2023.  On December 6, 2023, Plaintiff filed a Notice of Lis Pendens. 

Defendant Holly Hill Investments, LLC, (“Defendant”) claims it is the current owner of the property, as demonstrated by a December 11, 2023 judgment quieting title to the property in its favor in case number 19SMCV02002. 

Defendant moves to expunge Plaintiff’s lis pendens.  Plaintiff opposes the motion.  Non-Party Lori Ann Hart-Flaherty has filed a joinder to Plaintiff’s opposition.  Plaintiff filed an untimely amended opposition, indicating Plaintiff did not receive notice of the motion and required the additional time to prepare a more fulsome opposition.  As such, the Court considers the arguments in Plaintiff’s amended opposition.

REQUEST FOR JUDICIAL NOTICE

Defendant requests judicial notice of the following:

Exhibit 1: the Grant Deed recorded as document number 951580856 in the Official Records of Los Angeles County

Exhibit 2: the Deed of Trust recorded as document number 060553694 in the Official Records of Los Angeles County

Exhibit 3: the Notice of Default and Election to Sell Under Deed of Trust recorded as document number 20110477316 in the Official Records of Los Angeles County

Exhibit 4: the Notice of Trustee’s Sale recorded as document number 20120891440 in the Official Records of Los Angeles County

Exhibit 5: the Corporation Assignment of Deed of Trust recorded as document number 20121142056 in the Official Records of Los Angeles County

Exhibit 6: the Trustee’s Deed Upon Sale recorded as document number 20121142057 in the Official Records of Los Angeles County

Exhibit 7: the Grant Deed recorded as document number 20171172713 in the Official Records of Los Angeles County

Exhibit 8: the Complaint filed by Plaintiff in this action

Exhibit 9: the Notice of Pending Action (Lis Pendens) recorded as document number 20230867122 in the Official Records of Los Angeles County

Exhibit 10: the Notice of Entry of Judgment filed in Case No. 19SMCV02002.

With regard to Exhibits 1-7 and 9, courts can 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.)  Therefore, the Court takes judicial notice of Exhibits 1-7 and 9.

Regarding Exhibits 8 and 10, Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the Complaint is part of the Court’s record for this case and the notice of entry of judgment is a court record from case no. 19SMCV02002, the Court may take judicial notice of them.  (Ibid.)   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].)  Accordingly, the Court takes judicial notice of the existence of the Complaint filed in this matter and the truth of the results reached in the notice of entry of judgment as court records, but not the truth of hearsay statements or allegations contained therein. 

ANALYSIS

1.     JOINDER

Code of Civil Procedure section 387, subdivision (d) provides:   “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if […]The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

Similarly, “the court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.”  (Code Civ. Proc., § 387, subd. (d)(2).) 

Although Non-Party Lori Ann Hart-Flaherty (“Hart-Flaherty”) filed a “Joinder” to Plaintiff’s opposition that indicates, “LORI ANN HART-FLAHERTY (“Homeowner”) hereby joins this action, and joins in the Opposition to the Motion to Expunge[,]” Hart-Flaherty has not moved to intervene in this matter or otherwise demonstrated an interest in the underlying property or transaction that is the subject of this action to warrant intervention. 

Therefore, the Court declines to consider Hart-Flaherty’s “Joinder” as procedurally defective.

2.     LIS PENDENS

Code of Civil Procedure section 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.”

Here, Plaintiff acquired title to the subject property via Grant Deed in 1995.  (RJN Ex. 1.)  In 2006, Plaintiff took out a loan from Countrywide Home Loans, secured by a deed of trust against the property.  (RJN Ex. 2.)  In 2011, a Notice of Default and Election to Sell Under Deed of Trust was filed against the property.  (RJN Ex. 3.)  On June 15, 2012, a Notice of Trustee’s Sale was recorded against the property.  (RJN Ex. 4.)  U.S. Bank purchased the property at public auction on July 23, 2012.  (RJN Ex. 6.)  On October 5, 2017, U.S. Bank sold the property to Defendant.  (RJN Ex. 7.)

Further, on December 11, 2023, judgment was entered quieting title to the subject property in Defendant’s favor in case number 19SMCV02002.  (RJN Ex. 10.) 

Plaintiff contends that the doctrine of res judicata does not bar his claims because Plaintiff did not actually litigate the issues and there is no “judgment on the merits.”  The Court disagrees.  The Judgment entered in case number 19SMCV02002 was entered following an evidentiary hearing and provides a detailed finding of fact and analysis.

Therefore, Plaintiff has not established by a preponderance of the evidence the probable validity of his real property claim.

3.     ATTORNEYS’ FEES

Code of Civil Procedure section 405.38 provides:  “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 $4,095 in attorneys’ fees incurred in connection with bringing the instant motion, representing 11.7 hours at an hourly rate of $350.  Plaintiff does not address Defendant’s request for attorneys’ fees in the Amended Opposition.

Therefore, the Court grants Defendant’s request for $4,095 in attorneys’ fees.

CONCLUSION AND ORDER

For the reasons stated, the Court grants Defendant’s motion to expunge Plaintiff’s lis pendens, and awards Defendant its reasonable attorney fees in the amount of $4,095.  As such, the Court will enter the Order as proposed by Defendant.    

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

DATED:  October 1, 2024                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court