Judge: Monica Bachner, Case: 22STCV24086, Date: 2022-10-24 Tentative Ruling

Case Number: 22STCV24086    Hearing Date: October 24, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Shahram Moussazadeh’s motion to expunge the lis pendens recorded against the Subject Property is denied. Defendant’s request for relief in the alternative for an undertaking is denied.

Defendant’s request for attorneys’ fees is denied.

Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $2,400.00.

           Defendant Shahram Moussazadeh (“Moussazadeh”) (“Defendant”) moves for an order expunging Plaintiff’s Notice of Pendency of Action, and in the alternative, requests Plaintiff post an undertaking of $100,000.00 if the expungement is denied.  (Notice of Motion, pg. 1; C.C.P. §§405.30-405.34.)  Defendant also requests an award of attorneys’ fees and costs. (Motion, pg. 5; C.C.P. §405.38.)  In opposition, Plaintiff requests an award of attorneys’ fees and costs in the amount of $5,700.00.  (Decl. of Nejadpour, pg. 3.)

Evidentiary Objections

Defendant’s 10/18/22 evidentiary objections to the declaration of Bari Nejadpour, Esq. (“Nejadpour”) are overruled as to No. 1, and sustained as to No. 2.

           Background

           On July 26, 2022, Plaintiff Pourandokht Pourant (“Pourant”) (“Plaintiff”) filed her complaint with seven causes of action for (1) declaratory judgment; (2) fraudulent transfer under the Uniform Voidable Transfer Act (“UVTA”); (3) breach of oral contract; (4) intentional misrepresentation; (5) financial elder abuse; (6) quiet title; and (7) preliminary injunction to create a lien on the property known as 11815 Dorothy Street, Unit 5, Los Angeles, California 90049 (“Subject Property”), and file a lis pendens on Subject Property on July 27, 2022.  On September 7, 2022, Defendant filed a demurrer to Plaintiff’s complaint.  On September 12, 2022, Defendant filed the instant motion.  Plaintiff filed her opposition on October 11, 2022.  Defendant filed his reply and evidentiary objections on October 17, 2022.

           Motion to Expunge Lis Pendens

“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. . . The claimant shall have the burden of proof under Sections 405.31 and 405.32.”  (C.C.P. §405.30.)  The “claimant” is the “party to an action who asserts a real property claim and records a notice of the pendency of the action.”  (C.C.P. §405.1.)  The court shall order the notice expunged if (1) the court “finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim” or (2) the court “finds that the pleading on which the notice is based does not contain a real property claim.”  (C.C.P. §§405.31-405.32.) 

A.   Real Property Claim for Fraudulent Conveyance

The Court in Kirkeby v. Superior Court determined, “the plain language of the [lis pendens] statute . . . clearly establishes that fraudulent conveyance claims may support a lis pendens where the plaintiff seeks to void a fraudulent transfer.”  (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 651.)  “In making this determination, the court must engage in a demurrer-like analysis. . . . Therefore, review of an expungement order under section 405.31 is limited to whether a real property claim has been properly pled by the claimant.”  (Kirkeby, supra, 33 Cal.4th at pgs. 647-648.) 

The Kirkeby Court also explained the requirements for a fraudulent conveyance claim under the Uniform Fraudulent Transfer Act (“UFTA”), codified at Civil Code §§3439 et seq.:

A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claims. . . . A transfer under the UFTA is defined as ‘every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset. . . . A transfer of assets made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer, if the debtor made the transfer with an actual intent to hinder, delay or defraud any creditor.

(Kirkeby, supra, 33 Cal.4th at pg. 648 [citations omitted].)

           Here, Plaintiff’s complaint sufficiently pleads a cause of action for fraudulent transfer under UVTA.  Plaintiff alleges she entered into an oral contract with Defendant that was renewed each year for Plaintiff and Plaintiff’s then husband to place the title of Subject property into Defendant’s name in exchange for a fixed monthly income.  (Complaint ¶22.)  Plaintiff alleges that unbeknownst to her, Defendant obtained loans secured against the Subject Property, and intentionally liquidated the equitable portion of the Subject Property without any consideration of, or to Plaintiff, and currently attempts to sell Subject Property to a third party, even though Plaintiff claims an ownership interest in the Subject Property.  (Complaint ¶¶23-25.)

Plaintiff submits evidence in support of her claim, declaring Defendant persuaded her and her husband to transfer the title of Subject Property into Defendant’s personal name and that Defendant “would provide [Plaintiff’s] husband and [her]self a fixed income of $500 per month, and Defendant would pay for all property taxes, insurance payments, utilities, repairs, and any homeowners association fees for the Subject Property” in order to qualify for government assistance for living and medical expenses.  (Decl. of Pourat, pg. 2.)  Plaintiff declares that as part of Plaintiff’s oral agreement with Defendant, Defendant would keep the Subject Property free of liens and loans and would make no efforts to market or sell the Subject Property before the passing of Plaintiff’s husband or Plaintiff, and if the Subject Property was to be sold, sales proceeds would be split 1/3 to Plaintiff or her heirs, 1/3 to Plaintiff’s husband or his heirs, and 1/3 to Defendant or his heirs.  (Decl. of Pourat, pgs. 2-3.)  Plaintiff declares she later learned Defendant used the Subject Property as collateral for loans in more than $1,000,000.  (Decl. of Pourat, pg. 3.)   Plaintiff declares she made many demands for Defendant to return the title to the Subject Property, but Defendant ceased all communication with her, and monthly payments from Defendant to Plaintiff ceased initially in 2013 and then again in late 2020.  (Decl. of Pourat, pg. 3.)   Plaintiff further declares she learned in July 2022 that Defendant is now in escrow to sell the Subject Property without having communicated with Plaintiff about his intentions to sell.  (Decl. of Pourat, pg. 4.)

Accordingly, Plaintiff’s Complaint sufficiently establishes by a preponderance of the evidence the probable validity of the real property claim and pleads the probable validity that Defendant acquired title of the Subject Property with the intent to defraud Plaintiff.

B.   Real Property Claim for Quiet Title

In an action for quiet title, Plaintiff must plead (1) “[a] description of the property that is the subject of the action,” specifically the location of tangible personal property and the legal description and street address or common designation of real property, (2) “[t]he title of the plaintiff as to which a determination under this chapter is sought and the basis of the title,” (3) “[t]he adverse claims to the title of the plaintiff against which a determination is sought,” (4) “[t]he date as of which the determination is sought,” and (5) “[a] prayer for the determination of the title of the plaintiff against the adverse claims.”  (C.C.P §761.020.)

Plaintiff’s complaint sufficiently pleads a cause of action for quiet title.  Plaintiff seeks to quiet title to the Subject Property against Defendant and DOE Defendants, as of the date of July 28, 2003, the date of the alleged execution, notarization, and delivery of the Grant Feed by Plaintiff to the Defendant.  (Complaint ¶49.)

Plaintiff submits evidence in support of her claim, declaring that she and her husband purchased the Subject Property in August 2001 and was persuaded by Defendant to transfer the title of Subject Property into Defendant’s name.  (Decl. of Pourat, pgs. 1-2.)  Plaintiff declares she was served an official notice from the Los Angeles County Sheriff’s Department that the Subject Property was in loan default and was subject to sale at a foreclosure auction, and Defendant had borrowed one million dollars in loans against the Subject Property.  (Decl. of Pourat, pg. 3.)

Accordingly, Plaintiff’s complaint sufficiently establishes by a preponderance of the evidence the probable validity of the real property claim and sufficiently pleads the probable validity of her quiet title cause of action.

Compliance with §405.22 Service Requirements

Defects in statutory service and filing requirements are grounds for expungement.  (C.C.P. §405.23.)  Service of a lis pendens requires a claimant, “prior to recordation of the notice, [to] cause a copy of the notice to be mailed, 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 of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required.”  (C.C.P. §405.22.)

C.C.P. §405.22, “continues the service requirements and filing requirements specified in former C.C.P §409(c) and (d),” the earlier version of the current statute.  (C.C.P. §405.22, Code Comment.)  Courts interpreted the standard of C.C.P §409’s notice requirement for a lis pendens as actual notice.  (Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 137 [“Since actual notice is the heart of [these statutes], slavish adherence to the technical requirements of service would defeat the overall legislative objective.”].)

Here, Defendant had actual notice of the lis pendens recorded against the Subject Property, as stated in Defendant’s declaration filed in support of his August 3, 2022, ex parte petition on this motion.  (Ex Parte Application, Decl. of Moussazadeh ¶3; Decl. of Nejadpour, Exh. 1.)  Defendant declared, “I first learned that Plaintiff had recorded a Notice of Pendency of Action on July 28, 2022 . . . when I received a copy from Team LA Escrow Corporation, an escrow corporation handling Property Sale.”  (Decl. of Moussazadeh ¶3.)  Further, Plaintiff substantially complied with C.C.P. §405.22’s service requirement on August 1, 2022, by emailing a copy of the Notice of Pendency of Action to Defendant’s Counsel.  (Decl. of Nejadpour, Exh. 2.)

Based on the foregoing, Defendant’s motion to expunge lis pendens is denied. 

Undertaking

C.C.P. §405.33 provides:

The court shall order that the notice be expunged if the court finds that the real property claim has probable validity, but adequate relief can be secured to the claimant by the giving of an undertaking. The expungement order shall be conditioned upon the giving of the undertaking of such nature and in such amount as will indemnify the claimant for all damages proximately resulting from the expungement which the claimant may incur if the claimant prevails upon the real property claim. In its order conditionally expunging the notice, the court shall set a return date for the moving party to show fulfillment of the condition, and if the moving party fails to show fulfillment of the condition on the return day, the court shall deny the motion to expunge without further notice or hearing. Recovery may be had on the undertaking pursuant to Section 996.440.

Defendant as the moving party has the burden of proving whether a bond would be “adequate relief.”  (C.C.P §405.30; see Stewart Develop. Co. IV v. Superior Court (1980) 108 Cal.App.3d 266, 272.)  Defendant argues Plaintiff’s lis pendens jeopardizes Defendant’s sale of the Subject Property, and poses the risk of Subject Property’s buyer cancelling or demanding additional consideration due to Defendant’s inability to close escrow on August 1, 2022.  (Motion, pg. 4.)  Defendant argues Plaintiff’s admitted limited resources demonstrates Plaintiff likely lacks the ability to compensate Defendant for damages he will suffer if his buyer cancels or demands additional consideration, and requests alternative relief that Plaintiff post an undertaking of $100,000 if the lis pendens is not expunged, to compensate for at least a 10% drop from the sale price of Subject Property for $1,000,000.00.  (Motion, pgs. 4-5.) 

Defendant’s request for an undertaking is denied on the basis that a bond in the requested amount of $100,000.00 will not provide “adequate relief” to indemnify Plaintiff against all resulting damage from removing the lis pendens should she win or lose the lawsuit. (C.C.P. §405.33.)  Defendant states the Subject Property is in escrow and will be sold to buyer Sam Akghami for $1,000,000.  (Decl. of Nejadpour, Exh. 1.)  Considering the value of Subject Property exceeds $100,000.00, Defendant’s request for an undertaking in the amount of $100,000.00 is denied because it would not provide Plaintiff “adequate relief.”

           Attorneys’ Fees

C.C.P. §405.38 provides that, “[t]he court shall direct that the party prevailing on [a motion to expunge lis pendens] be awarded the reasonable attorney’s fees and costs of making or opposing the motion.”

           Accordingly, Defendant’s request for attorneys’ fees and costs against Plaintiff are denied.

Plaintiff’s counsel’s hourly rate is $600 per hour, with a total of 9.5 hours worked on this motion, and requests $5,700.  Plaintiff’s request for attorneys’ fees as the prevailing party for this motion is granted in the reduced amount of $2,400.

Accordingly, Plaintiff’s request for attorneys’ fees and costs against Defendant are granted.

Dated:  October _____, 2022

Hon. Monica Bachner

Judge of the Superior Court