Judge: Michael Shultz, Case: 23CMCV00086, Date: 2023-10-02 Tentative Ruling
Case Number: 23CMCV00086 Hearing Date: October 3, 2023 Dept: A
23CMCV00086 Jeffrey
W. Young v. James W. Young, Co-Trustee of JW and JM Young Trust
[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION TO EXPUNGE LIS
PENDENS
The
complaint alleges that Defendant, Jeffrey W. Young, Co-Trustee of the James W.
Young and Jacquelyn M. James-Young Trust (“Trust”), entered into a contract in
which Defendant would transfer 100 percent of the commercial real property at
issue to Plaintiff, his son, who was a co-partner of the J.W. Young Trucking
Company. However, Plaintiff’s father transferred the real property to the Trust
without Plaintiff’s knowledge or consent, although Plaintiff has been paying
property taxes, maintenance, and improvements. Plaintiff alleges claims for
quiet title, for declaratory relief, and specific performance.
Defendant asks
for an order to expunge the Notice of Pendency of Action (“lis pendens”)
recorded by Plaintiff. Plaintiff does not allege a real property claim, and Plaintiff
will not be able to demonstrate a probability of prevailing on the complaint by
a preponderance of evidence. The lis pendens was improperly served on Defendant,
which renders it void. Alternatively, if the Court finds the lis pendens was
properly recorded and served, the Court should still expunge it because
Defendant can file an appropriate undertaking. The Court should award
attorney’s fees to Defendant incurred to prepare the motion.
Plaintiff argues that
the complaint alleges a claim for quiet title, which is a real property claim. The
Court need only examine the allegations of the complaint.
In reply, Defendant
argues that the Trust does not own the property. Plaintiff did not meet his
burden of showing a probability of prevailing. Because the Trust is revocable, the Trustor
could change beneficiaries at any time.
Upon commencement
of a quiet title action, a notice of pendency of action is required to be recorded.
(Code
Civ. Proc., § 761.010 (b). Prior to recording it, a real property claimant
must mail a copy by registered or certified mail, return receipt requested, to
all known addresses of the parties to whom the real property claim is adverse
and to all owners of record. (Code Civ. Proc., § 405.6.) A copy of the notice
must also be filed in which the action is pending. (Id.)
A “real property
claim” is one affecting title to or the right to possession of specific real
property. (Code Civ. Proc., § 405.4.) A lis pendens is required to be filed in
quiet title actions. (Code Civ. Proc., § 761.010 (b).)
Plaintiff
recorded a notice of lis pendens on January 27, 2023, affecting real property
located at 10120 and 10122 South Main Street, in Los Angeles, which is the real
property at issue in the complaint.
(Defendant’s Ex. 1.) Plaintiff
served the lis pendens by certified mail, return receipt requested, on the
Trust at 1972 Santa Rosa Avenue in Pasadena. (Id., .pdf
p. 24.)
However, the real
property at issue is made up of two parcels. The first parcel is owned by James
W. and Julia Young, husband, and wife as joint tenants. (Reply Ex. 5, .pdf page 12.) Title to the second
parcel is vested in James W and Julia Young as Trustees under Declaration of
Trust dated September 20, 1996. (Id.) Plaintiff did not
join all necessary parties and did not serve the correct owners of Parcel
1.
Moreover,
Defendant Trustee states that he has not lived at the Pasadena address in over
four years. (Young, decl., ¶ 4.) Plaintiff is aware that Defendant currently
lives in Upland, where Plaintiff has visited prior to filing the lawsuit. (Id.)
Plaintiff does not address the accuracy of the address where the lis pendens was
delivered. Failure to adhere to requirements for service of the lis pendens renders
the notice void and invalid. (Code Civ. Proc., § 405.23.) Additionally, the
Court’s file does not reflect that Plaintiff filed a copy of the notice with
the Court.
Defendant’s
motion is substantively meritorious. A party can move to expunge the lis
pendens. (Code Civ. Proc., § 405.30.) The real property claimant has the burden
of proving the probable validity of the real property claim, defined as "more likely than not that the claimant will
obtain a judgment against the defendant on the claim." (Code Civ. Proc., § 405.3.) Plaintiff can meet his burden of
establishing that the complaint has merit “by competent material allegations in
a verified complaint, by affidavit, or by other proof allowed by the trial
court.” (McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 299.)
The claim for quiet title alleges that
Plaintiff was promised the property as a partner of the trucking company, where
he worked for 20 years. (Complaint ¶ 6.) The cause of action for specific
performance alleges that in 1996, Plaintiff and Defendant Trustee entered into
a contract in which James W. Young agreed to transfer a 100 percent interest in
the real property to Plaintiff. (Complaint, ¶ 18.)
The complaint fails to allege a claim for
breach of contract. To prevail on this claim, Plaintiff must prove (1) the
existence of a valid and existing contract between the parties, (2) plaintiff’s
performance or excuse for non-performance, (3) defendant’s breach; and (4)
resulting damage. (Richman v. Hartley (2014) 224 Cal.App.4th 1182,
1186.) A written
contract may be pleaded either by its terms, set out verbatim in the complaint
or Plaintiff may attach a copy of the contract the complaint and incorporate it
by reference. (Heritage Pacific Financial, LLC v.
Monroy (2013) 215
Cal.App.4th 972, 993.) Plaintiff may also allege the contract by its legal
effect by alleging the substance of its relevant terms. (Id.) at 993. A
valid contract requires, among other things, consideration. (Civ. Code, § 1550.)
The verified complaint does not allege the
material terms of the purported contract. The only material term is the promise
to transfer the real property to Plaintiff. There are no material terms with
respect to the date of the contract, when the transfer would occur, or the consideration
supporting the promise.
The opposition is not supported by any
declarations. Plaintiff attaches the terms of a revocable living trust which
does not support Plaintiff’s claim of title. Other than being revocable, the Trust directed distribution of
the real property at issue to Plaintiff upon the Settlor’s death. (Defendant’s
Ex. A, ¶ 2.4.) Settlors are James W. Young and Julia Young. (Id.
¶ 1.1.) There is no allegation or evidence showing that the Settlors died. Additionally,
Plaintiff submits the Settlors’ last will and testament, which called for the
distribution of assets pursuant to the terms of the revocable living trust. (Defendant’s
Ex. B, .pdf p. 18.)
On September
26, 2023, Plaintiff filed a first amended complaint (“FAC”) adding new claims
for breach of contract, cancellation of instrument, and promissory estoppel. The
amended pleading does not affect the propriety of the lis pendens because the
FAC is not verified as required for quiet title actions. In determining the
motion, the Court considers allegations
in a verified complaint and other evidence. (McKnight v. Superior Court
(1985) 170 Cal. App. 3d 291, 299.) Plaintiff’s other evidence is insufficient
to meet Plaintiff’s burden.
The
statute mandates an award of reasonable attorney’s fees and costs to the
prevailing party unless the opposing party acted with substantial justification
or circumstances make the imposition of an award unjust. (Code Civ. Proc., §
405.38.)
Defendant’s
counsel has been practicing for 29 years and requests an hourly fee of $495 per
hour, which the Court finds reasonable. (Decl. of Sean M. Bryn.) The Court
finds that five hours to prepare this motion and reply brief and to appear at
the hearing (reduced from 7.4 hours) is reasonable. Accordingly, Plaintiff is
ordered to pay to Defendant $2,475.00 in attorney’s fees and $60 in costs.
As Plaintiff has
not met his burden of showing a probability of prevailing on his claims by a
preponderance of evidence, the Court grants Defendant’s motion to expunge the
lis pendens recorded on January 27, 2023. Fees and costs of $2,535.00 are
payable to Defendant within 10 days.