Judge: Michael J. Strickroth, Case: 2023-01319831, Date: 2023-08-28 Tentative Ruling

Motion to Expunge Lis Pendens

Defendant Saad Cotta’s motion to expunge two Notices of Lis Pendens Action that were recorded by Jeffrey J. Czech, counsel of record for plaintiff Ihsan Shamaan, on April 21, 2023, for properties located at (1) 4946 Florence Avenue, Bell, California 90201 and (2) 4151 Humboldt Drive, Huntington Beach, California 92649 is GRANTED.

“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. . . Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure § 405.30.

“The only substantive grounds upon which a lis pendens can be expunged is if the underlying action does not contain a real property claim (§ 405.31) or the real property claim lacks probable validity (§ 405.32).” J&A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 22 (J&A).

Defendant contends the two Notices of Lis Pendens Action should be expunged because Plaintiff cannot establish the probable validity of the real property claim for either of the two properties.

“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.” Code Civ. Proc. § 405.32.

“‘Probable validity,’ with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” Code Civ. Proc. § 405.3. “[S]ection 405.30 explicitly places the burden of proving the probable validity of the real property claim on [] the claimant.’” J&A, supra, at 33.

Here, Plaintiff as the claimant bears the burden of establishing the probable validity of the real property claims alleged in the Complaint. Code Civ. Proc. § 405.32. Defendant has submitted sufficient evidence to support a position that creates significant doubt Plaintiff’s claim is valid.  Plaintiff has not opposed the Motion and has therefore failed to establish the probable validity of the real property claim.

Based on the foregoing, the Motion is GRANTED.  The lis pendens recorded by attorney Jeffrey J. Czech on April 21, 2023, as to 4946 Florence Avenue, Bell, CA 90201 and the lis pendens recorded by attorney Jeffrey J. Czech on April 21, 2023, as to 4151 Humboldt Drive, Huntington Beach, CA 92649 are hereby ordered expunged.

Moving party to give notice.