Judge: Michael Small, Case: 19STCV00777, Date: 2024-06-20 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19STCV00777    Hearing Date: June 20, 2024    Dept: 57

Hinton Shih sued Emmelyn Chu ("Defendant").  During the course of the litigation, Shih died.  His successor in interest Yan Zhang (“Plaintiff”) filed the operative third amended complaint ("the TAC") against the Defendant individually and in her capacity as trustee of the Emmelyn Chu Living Trust.  The TAC asserted eleven causes of action against the Defendant, including, as most relevant here, a claim to quiet title to real property located at 918 W. College St., #503, Los Angeles, California (“the Property”).  On August 23, 2023, the Court granted the Defendant's summary judgment motion. Judgment was entered for the Defendant on September 8, 2023.  Plaintiff has appealed from that judgment.   Her appeal is pending.

Prior to the Court's entry of judgment for Defendant, the Plaintiff recorded a notice of a lis pendens on the Property.  The lis pendens continues to encumber the Property.  Pending before this Court is Defendant's motion to expunge the lis pendens.  Plaintiff did not file an opposition to the motion.  The Court is granting the motion.

The entry of judgment for the Defendant did not automatically expunge Plaintiff's lis pendens on the Property.  "Even after judgment, a lis pendens remains effectively on the record unless a statutory ground for expungement is established.” (Slintak v. Buckeye Retirement Co., L.L.C., Ltd. (2006) 139 Cal.App.4th 575, 587.)  As relevant here, one statutory ground for expungement is that the party who has a claim related to real property and has recorded a lis pendens on it "has not established, by a preponderance of the evidence, the probable validity of [the] claim."  (Code of Civil Procedure  §405.32).  For purposes of a motion to expunge a lis pendens, the term "'probable validity'  . . . means  that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim."  (Id. § 405.3.) 
When it comes to "a motion to expunge a lis pendens after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not that the appellate court will reverse the judgment.”  (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.)  In the Court's view, the Plaintiff cannot meet that standard.  She filed no brief in opposition to the motion arguing otherwise.  Accordingly, Defendant's motion to expunge the lis pendens that Plaintiff recorded on the Property is granted. 

Defendant requests an order requiring Plaintiff to pay Defendant's attorney's fees incurred in connection with the motion.  Defendant bases this request on Code of Civil Procedure Section 405.38, which authorizes an award of attorney's fees and costs related to a motion to expunge a lis pendens to the party that prevailed on the motion.  As the prevailing party on the motion to expunge the lis pendens on the Property, Defendant is entitled to an award of reasonable attorney's fees incurred in connection with the motion.  Defendant's counsel stated billing rate is $525 per hour.  The Court finds that this rate is reasonable.  Counsel stated that she spent 5.5 hours in preparing the motion.  The Court finds that this is a reasonable amount of time to have spent on the motion.  The Court will award Defendant attorney's fees for an additional hour of counsel's time spent in connection with the hearing on the motion, at counsel's hourly billing rate.  Defendant also is entitled to recover from Plaintiff the filing fee for the motion, which was $60.  All told, the Court is awarding Defendant $3,472.50 in fees and costs associated with the motion.   Plaintiff must pay that amount to the Plaintiff by October 1, 2024.