Judge: Michael P. Linfield, Case: 22STCV39101, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV39101    Hearing Date: May 18, 2023    Dept: 34

SUBJECT:         Motion to Expung[e] Lis Pendens

Moving Party:  Defendant Sylvia Mouneu

Resp. Party:    Plaintiff Juan Lopez

Defendant Sylvia Mouneu’s Motion to Expung[e] Lis Pendens is GRANTED.

Defendant’s Request for Attorney’s Fees and Costs is DENIED.

BACKGROUND:

On December 16, 2022, Plaintiff Juan Lopez filed his Complaint against Defendant Sylvia Mouneu regarding a dispute about a property located at 8625 Ivy Street, Los Angeles, CA 90002.

On February 2, 2023, Plaintiff filed his Notice of Pendency of Action Pursuant to CCP § 405.20, et seq. (Lis Pendens).

On February 3, 2023, Plaintiff filed his First Amended Verified Complaint.

On April 21, 2023, Defendant filed her Verified Answer to First Amended Complaint.

On April 25, 2023, Defendant filed her Motion to Expung[e] Lis Pendens. The Motion includes a Request for Attorney’s Fees and Costs.

On May 2, 2023, Defendant filed her POS-020, Proof of Personal Service.

No opposition or other response has been filed to the Motion.

ANALYSIS:

I.           Legal Standard

“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.)

“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.)

II.        Discussion

A.      The Lis Pendens

Defendant moves the Court to expunge the lis pendens Plaintiff filed on February 2, 2023 on the basis that Plaintiff cannot show probable viability of his claim. (Motion, p. 8:7–11; Code Civ. Proc., § 405.32.)

Plaintiff has not opposed the Motion or provided any evidence that would support finding that Plaintiff has a probable validity of a real property claim. In contrast, Defendant has submitted various items that support her claims. (Motion, Decl. Mouneu and Exhs. 3–5, 8.) Thus, Plaintiff has not met his burden. (Code Civ. Proc., § 405.30.)

The Court GRANTS Defendant’s Motion. The Court EXPUNGES the lis pendens.

B.      Attorneys’ Fees and Costs

Defendant requests attorney’s fees and costs. (Motion, p. 8:10–11.)

Defendant is the prevailing party on the Motion. However, Defense counsel’s request for $7,600.00 in attorney's fees is unreasonable.  Counsel states that “[a]s of this date, I have spent over 11 hours in reviewing and analysis of the amended complaint, research of the law and preparation of the motion and gathering the documents to file with the motion.”  (Pourmorady Declaration, ¶ 7.)  However, attorney Pourmorady has been an attorney for almost 25 years; it should not have taken him 11 hours to prepare a simple five-page MPA, two pages of which simply quotes statutes relating to lis pendens.  (See Motion, pp. 3-8.) The documents attached as exhibits to the motion – including the FAC – should have taken virtually no time to collate; if they took any time at all, it should have been done by a legal secretary who does not bill at $400/hour. Counsel then estimates he will spend an additional 8 hours “for review of the response which is anticipated to be filed and then preparation of the reply and eventually the appearance for the hearing.”  (Pourmorady Declaration, ¶ 8.)

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [cleaned up].)   “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court DENIES Defendant’s Request for Attorney’s Fees and Costs.

III.     Conclusion

Defendant Sylvia Mouneu’s Motion to Expung[e] Lis Pendens is GRANTED.

Defendant’s Request for Attorney’s Fees and Costs is DENIED.