Judge Michael P. Linfield, Case 22STCV35145 2023-05-18 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV35145, Date: 2023-05-18 Tentative Ruling

SUBJECT: Motion to Expunge Lis Pendens and for Attorneys’ Fees and Costs

Defendant/Cross-Complainant Frank M. Bacino and Defendant Perry M. Bacino’s Motion to Expunge Lis Pendens and for Attorneys’ Fees and Costs is DENIED.

Attorneys’ fees and costs are AWARDED in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $3,052.50.

On November 4, 2022, Plaintiff Inna Ashchyan filed her Verified Complaint against Defendants Frank M. Bacino and Perry M. Bacino on various causes of action arising from Defendant Frank M. Bacino’s alleged conveyance of a life estate to Plaintiff.

On November 15, 2022, Plaintiff filed her Notice of Pendency of Action [Lis Pendens].

On January 24, 2023, the Court SUSTAINED without leave to amend the first and second causes of action in Plaintiff’s Complaint.

On February 15, 2023, Defendants Frank M. Bacino and Perry M. Bacino filed their Verified Answer to Plaintiff’s Verified Complaint.

On February 15, 2023, Defendant/Cross-Complainant Frank M. Bacino filed his Cross-Complaint against Plaintiff/Cross-Defendant Inna Ashchyan.

On April 17, 2023, Plaintiff/Cross-Defendant filed her Answer to the Cross-Complaint.

On April 20, 2023, Defendant/Cross-Complainant Frank M. Bacino and Defendant Perry M. Bacino (“Defendants”) filed their Motion to Expunge Lis Pendens and for Attorneys’ Fees and Costs (“Motion”). Defendants concurrently filed: (1) Request for Judicial Notice; and (2) Proposed Order.

On May 5, 2023, Plaintiff/Cross-Complainant filed her Opposition. The Opposition includes a Request for Attorney’s Fees and Costs.

On May 11, 2023, Defendants filed their Reply. Defendants concurrently filed their Evidentiary Objections.

According to Plaintiff, Defendant Frank M. Bacino passed away on February 21, 2023. The Court does not have evidence of this. Regardless, the Motion is filed under the name of both Defendants. The Court refers to both Defendants below because the motion is filed in both Defendants’ names, and because the Court has no other evidence before it. If he has passed, any proper paperwork necessary to indicate the change in party should be filed. However, that is not an issue germane to the Motion.

Defendants object to the Declarations of Inna Ashchyan, Melanie Ashchyan, and Lou Prata.

The following are the Court’s rulings on the evidentiary objections to the Declaration of Inna Ashchyan.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED

The following are the Court’s rulings on the evidentiary objections to the Declaration of Melanie Ashchyan.

Objection
1	SUSTAINED
2	SUSTAINED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED

The following are the Court’s rulings on the evidentiary objections to the Declaration of Lou Prata.

Objection
1		OVERRULED
2		OVERRULED

Defendants request that the Court take judicial notice of the Complaint, Answer, and Stipulated Judgment in the unrelated unlawful detainer action, Case No. 22PDUD01977.

“A lis pendens—also called a notice of pendency of action—is a document filed with a county recorder that provides constructive notice of a pending lawsuit affecting the real property described in the notice.” (Shoker v. Super. Ct. (2022) 81 Cal.App.5th 271, 275, citing Kirkeby v. Super. Ct. (2004) 33 Cal.4th 642, 647.)

“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. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion 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 Civ. Proc., § 405.30.)

“A court shall order a notice of lis pendens expunged if it determines (1) that the pleading on which the notice is based does not contain a real property claim (§ 405.31); (2) that the claimant has not established, by a preponderance of the evidence, the probable validity of a real property claim (§ 405.32); or (3) that adequate relief can be secured by an undertaking. (§ 405.33.)” (Shoker, supra, at 277, citing Code Civ. Proc., §§ 405.31–405.33.)

“The ‘probable validity’ standard was added to the lis pendens statute in 1992 to override the decision in Malcolm v. Superior Court (1981) 29 Cal.3d 518, 527, and other cases holding that the trial court on a motion to expunge may not conduct a ‘minitrial’ on the merits of the case. The statute changed the law to require a judicial evaluation of the merits of the underlying claim. Unlike other motions, the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim. (Code Civ. Proc., § 405.30.) The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.)” (Howard S. Wright Constr. Co. v. Super. Ct. (2003) 106 Cal.App.4th 314, 319, citation omitted.)

“Subject to the provisions of Sections 405.31 and 405.32, at any time after a notice of pendency of action has been recorded, and regardless of whether a motion to expunge has been filed, the court may, upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the person moves to require an undertaking. 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 affected party. An undertaking required pursuant to this section shall be of such nature and in such amount as the court may determine to be just. In its order requiring an undertaking, the court shall set a return date for the claimant to show compliance and if the claimant fails to show compliance on the return date, the court shall order the notice of pendency of action expunged without further notice or hearing. . . .” (Code Civ. Proc., § 405.34.)

“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.” (Code. Civ. Proc., § 405.38.)

Defendants move the Court to issue an order expunging the lis pendens on the property at issue (Motion, p. 9:14–16.) Defendants argue: (1) that Plaintiff cannot establish by a preponderance of the evidence that her real property claim has probably validity; (2) that the unlawful detainer stipulated judgment acts as res judicata related to Plaintiff’s life estate; and (3) that no undertaking should be ordered in connection with the expungement, however, Plaintiff should be ordered to provide an undertaking should the Court decline to expunge the lis pendens. (Id. at pp. 4:14–16, 6:5–6, 7:10–11, 8:7–10.)

Plaintiff opposes the Motion, arguing: (1) that Plaintiff can establish by a preponderance of the evidence the probable validity of her real property claim for a life estate; and (2) that the unlawful detainer stipulated judgment has no res judicata effect on Plaintiff’s life estate claims in the instant civil action.

In their Reply, Defendants argue: (1) that Plaintiff has not established the probable validity of her life estate claim; (2) that Plaintiff’s claims are contrary to Defendant Frank M. Bacino’s intentions as identified in the First Amended and Restated Frank M. Bacino Revocable Living Trust; (3) that Plaintiff’s declarations fail to identify facts related to having been granted a life estate in the property; and (4) that, alternatively, Plaintiff should be ordered to give an undertaking as condition of maintaining the lis pendens.

“Res judicata” is a doctrine that exists both in California statute and in California common law. (Code Civ. Proc., § 1908, subd. (a)(1)–(2).)

“As generally understood, the doctrine of res judicata gives certain¿conclusive effect¿to a¿former judgment¿in subsequent litigation involving the same controversy. The doctrine has a double aspect. In its primary aspect, commonly known as claim preclusion,¿it operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. In its secondary aspect, commonly known as collateral estoppel, the prior judgment operates in a second suit based on a different cause of action as an estoppel or¿conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” (People v. Barragan (2004) 32 Cal.4th 236, 252–53 [cleaned up], emphases in original.)

“Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. ‘Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897, quotations and internal quotation marks omitted.)

Generally, “a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title, or to adjudicate other legal and equitable claims between the parties.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 255, citations omitted.)

“We agree that ‘full and fair’ litigation of an affirmative defense -- even one not ordinarily cognizable in unlawful detainer, if it is raised without objection, and if a fair opportunity to litigate is provided -- will result in a judgment conclusive upon issues material to that defense. In a summary proceeding such circumstances are uncommon.” (Vella, supra, at 256–57.)

A stipulated judgment can have the same preclusive effect as a judgment on the merits following trial — including in the context of unlawful detainer. (See, for example, Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 753, 759.)

“The burden of proving that the requirements for application of res judicata have been met is upon the party seeking to assert it as a bar or estoppel.” (Vella, supra, at 257, citation omitted.)

The Court considers whether the Stipulated Judgment in the unlawful detainer case, Case No. 22PDUD01977 has any preclusive effect on Plaintiff’s claims in this case.

First, there is no indication in the record that there was ever a full and fair litigation of the affirmative defense that she has a life estate in the property.

Second, the Stipulated Judgment explicitly states the following: “No provision herein shall waive, modify or effect the claims set off, [sic] defense either party may have against the other in LASC 22STCV35145.” (Stipulated Judgment in Case No. 22PDUD01977, Item 6.)

The plain meaning of the Stipulated Judgment is that it has no res judicata effect. Defendants do not meet their burden for asserting res judicata.

(1) Declaration of Perry M. Bacino, in which Defendant Perry M. Bacino declares, among other things, that there is no agreement concerning Plaintiff having a life estate in the property (Motion, Decl. Bacino, ¶ 7);

(2) The Complaint, Answer, and Stipulated Judgment in the unlawful detainer case, which includes a provision that Plaintiff agrees to vacate the subject premises by April 15, 2023 (Request for Judicial Notice, Exh. C);

(3) A 30-Day Notice to Quit, dated July 8, 2022, by Defendant Perry M. Bacino to Plaintiff (Motion, Exh. 2);

(4) The Uniform Statutory Form Power of Attorney, giving Defendant Frank M. Bacino’s power of attorney to Plaintiff Perry M. Bacino, dated and notarized July 10, 2014 (Motion, Exh. 4);

(5) Police Report, describing an incident when the police were called to assist Defendant Frank M. Bacino, dated July 4, 2022 (Motion, Exh. 5); and

(6) The First Amended and Restated Frank M. Bacino Revocable Living Trust, dated and notarized July 10, 2014, and which shows, among other things, that Plaintiff and her daughter were to receive a specific gift of $10,000.00 and $5,000.00, respectively (Reply, Exh. A [actual page 41 of 50]).

(1) Declaration of Inna Ashchyan, in which Plaintiff declares, among other things:

(a) that Plaintiff became Defendant Frank M. Bacino’s neighbor in 2011 and, over the years, became his close friend;

(b) that Plaintiff assisted Defendant Frank M. Bacino with various household tasks and chores and that he requested more help from her as he got older;

(c) that in late December of 2017, Defendant Frank M. Bacino offered Plaintiff a life estate for the entirety of her life in exchange for Plaintiff’s daily caretaking and household services for him;

(e) that Plaintiff performed according to the offer, including by providing daily, around-the-clock caretaking and household services for Defendant Frank M. Bacino;

(f) that Plaintiff reduced her work hours upon Defendant Frank M. Bacino’s insistence in order to further help him; and

(g) that Defendant Frank M. Bacino repeatedly gave oral promises that Plaintiff would be able to live in the house for the rest of her life (Opposition, Decl. Inna Ashchyan, ¶¶ 3–5);

(2) Declaration of Melanie Ashchyan, in which Ms. Ashchyan declares, among other things:

(a) that she heard Defendant Frank M. Bacino tell Plaintiff many times that she would be taken care of and could have the house when he died;

(b) that Plaintiff provided daily, around-the-clock caretaking and household services for Defendant Frank M. Bacino (Opposition, Decl. Melanie Ashchyan, ¶¶ 3–4);

(a) that he overheard Defendant Frank M. Bacino tell Plaintiff that she would be taken care of and could have the house; and

(b) that Plaintiff took care of Defendant Frank M. Bacino for several years without any pay (Opposition, Decl. Prata, ¶ 2); and

Evidence from three different sources (Inna Ashchyan, Melanie Ashchyan, and Lou Prata) support the proposition that there was an oral life estate of the subject property granted in 2017 by Defendant Frank M. Bacino to Plaintiff for the duration of Plaintiff’s life. This evidence also shows that Plaintiff acted in a manner reliant upon and consistent with the granting of a life estate, which could support an estoppel argument regarding the statute of frauds. (See Ward v. Wrixon (1959) 168 Cal.App.2d 642, 643–44, 657; see also Notten v. Mensing (1935) 3 Cal.2d 469, 474.)

However, there is also evidence from one source (Defendant Perry M. Bacino) that there was no life estate granted. In addition, the Restated Trust from 2014 does not discuss a life estate, and it explicitly includes monetary gifts to Plaintiff and her daughter. The police report indicates that, in 2022, Defendant Frank M. Bacino may have been cognitively impaired, although it does not provide any indicia about whether that was the case in 2017 when the life estate was alleged granted.

The Court notes that there is no evidence Defendant Frank M. Bacino was in a conservatorship in 2017 or that he was otherwise unable to exercise his own legal rights at that time.

A weighing of the evidence presented shows that Plaintiff meets her burden by demonstrating, by a preponderance of the evidence, a probable validity of her claim that she has a valid life estate for the duration of her life. This is because:

(1) the evidence of those who heard the repeated offers of a life estate appears to be prima facie credible;

(2) there is at least probable validity for the proposition that a life estate was granted and that estoppel of the statute of frauds applies here;

(3) the Restated Trust from 2014 would logically not discuss any life estate granted in 2017, and thus the absence of the life estate from the Restated Trust has only minimal weight in the analysis;

(4) there is no evidence that Defendant Frank M. Bacino was cognitively-impaired in 2017 in a manner that would preclude his ability to grant a life estate in his property to Plaintiff; and

(5) there is no evidence that Defendant Frank M. Bacino was legally unable to grant a life estate in his property to Plaintiff.

Defendants argue that Plaintiff should be ordered to give an undertaking as a condition of maintaining the lis pendens. (Reply, p. 5:10–11.) According to Defendants, this would be appropriate to offset the damages caused while the action is pending because Defendants are unable to use the property for any purposes as a result of the maintenance of the lis pendens. (Id. at p. 6:1–5.)

The Stipulated Judgment includes the judgment that Plaintiff agreed to vacate the subject property by April 15, 2023. It is now May 2023, and there is no indication that Plaintiff is still living at the subject property. Although the Court would be inclined to require an undertaking to offset the costs of maintenance if Plaintiff were still living at the property, the Court is disinclined to do so because Defendants have succeeded in their unlawful detainer action. In other words, if Plaintiff does not have the benefit of the life estate, it is inequitable for the Court to require Plaintiff to undertake the cost of the life estate. Further, there is no evidence before the Court that the lis pendens is currently affecting any effort by Defendants to sell the property.

Both Defendants and Plaintiff request attorney’s fees and costs. (Motion, p. 9:14–16; Opposition, p. 9:2–4.)

Plaintiff is the prevailing party on this motion. As the Court does not have any evidence to suggest that Defendants acted with substantial justification in making the motion or that other circumstances make the imposition of attorney’s fees and costs unjust, the Court must award attorney’s fees and costs in favor of Plaintiff and against Defendants. (Code Civ. Proc., § 405.38.)

It is not uncommon for courts to compare opposing counsel’s fees to help determine whether the moving party’s fees are reasonable. That is because a “comparative analysis of each side’s respective litigation costs may be a useful check on the reasonableness of any fee request.”¿¿(Mountjoy v. Bank of Am., N.A.¿(2016) 245 Cal.App.4th 266, 273, 281, quoting¿Donahue v. Donahue¿(2010) 182 Cal.App.4th 259, 272.)¿“[T]here is one particularly good indicator of how much time is necessary [for the purpose of determining reasonableness of attorneys’ fees] . . . and that is how much time the other side’s lawyers spent . . . [S]uch a comparison is a useful guide in evaluating the appropriateness of time claimed. If the time claimed by the prevailing party is of a substantially greater magnitude than what the other side spent, that often indicates that too much time is claimed. Litigation has something of the tennis game, something of war, to it; if one side hits the ball, or shoots heavy artillery, the other side necessarily spends time hitting the ball or shooting heavy artillery back.” (Democratic Party of Washington State v. Reed¿(9th¿Cir. 2004) 388 F.3d 1281, 1287.)¿¿

Here, Plaintiff requests $7,474.50 in attorneys’ fees and costs, while Defendants requests $3,052.50 in attorneys’ fees and costs. (Motion, Decl. Uss, ¶ 9; Opposition, Decl. Krog, ¶ 6.) Defendants clearly believe that $3,052.50 is a reasonable amount to award for attorney's fees. The Court also agrees.

The Court AWARDS attorneys’ fees and costs in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $3,052.50.

Defendant/Cross-Complainant Frank M. Bacino and Defendant Perry M. Bacino’s Motion to Expunge Lis Pendens and for Attorneys’ Fees and Costs is DENIED.

Attorneys’ fees and costs are AWARDED in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $3,052.50.