Judge: Monica Bachner, Case: 22STCV24086, Date: 2023-01-11 Tentative Ruling

Case Number: 22STCV24086    Hearing Date: January 11, 2023    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 granted.

Defendant is directed to file a motion for attorneys’ fees in connection to this motion.

Plaintiff’s request for attorneys’ fees is denied.

          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.)

          On October 31, 2022, this Court issued a ruling in this matter denying Defendant’s motion to expunge Plaintiff’s Notice of Pendency of Action, and in the alternative, request Plaintiff post an undertaking of $100,000.00.  (10/31/22 Ruling.)  On December 15, 2022, this Court denied Defendant’s motion for reconsideration of the 10/31/22 Ruling and issued a ruling that pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108, the court was sua sponte considering reconsidering its 10/31/22 ruling denying Defendant’s motion to expunge Plaintiff’s Notice of Pendency of Action and set the matter for hearing on January 11, 2023, on the grounds that the Court has been put on notice that Plaintiff’s declaration lacked a proper verification and the no proof of service was filed with the Court regarding Plaintiff’s Complaint, Summons, Lis Pendens, or Declaration in support of Plaintiff’s Complaint.  (12/15/22 Ruling.)

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 Pourat (“Pourat”) (“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”).  In support of the Complaint, Plaintiff filed a declaration on the same day.  She filed 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.

On December 15, 2022, this Court directed parties to submit simultaneous briefs of no more than 10 pages on December 21, 2022, regarding the competence of Plaintiff’s declaration in support of the motion to expunge lis pendens, and allowed simultaneous reply briefs of no more than five page to be filed on or before January 3, 2023.  (12/15/22 Ruling.)  Parties timely filed their simultaneous briefs,[1] and Defendant timely filed his reply.

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. 2.)  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; Decl. of Nejadpour, Exh. 2.)  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. 3.) Accordingly, the motion is denied on this ground.

          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.)  In Opposition, Plaintiff argued that she had two real property claims:  the fraudulent transfer claim (Opposition, pgs 2-4), and the quite title cause of action (Opposition, pgs. 4-5).  Here, as discussed below, the Plaintiff has not sustained her burden of proof of establishing by a preponderance of the evidence the probable validity of these real property claims.

1. Fraudulent Transfer (2^nd cause of action)

    

   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.)

    

   In opposition, Plaintiff argued that the “Complaint sufficiently pleads and establishes with supporting facts a compelling evidentiary record the probable validity that Defendant acquired title of the Subject Property with the intent to defraud Plaintiff, and that Defendant intends to now transfer the title of the subject property with the intent to further defraud Plaintiff” as to the fraudulent conveyance claim (see Opposition, pg. 3), and makes a similar assertion to the quiet title cause of action (id.). 

    

   However, Plaintiff failed to submit admissible evidence in support of her claim.  Plaintiff’s declaration lacks a proper verification on personal knowledge and belief and is therefore incompetent because it is based on information and belief and not Plaintiff’s personal knowledge of the matter.  (Evid. Code §702; see Decl. of Pourat, pg. 4; C.C.P. §446.)  Further, Plaintiff’s opposition fails to identify the supporting facts from Plaintiff’s Complaint that demonstrate the probable validity that Defendant acquired title of the Subject Property with the intent to defraud Plaintiff.  (See Opposition, pgs. 3-4.)

    

   Accordingly, Plaintiff’s Complaint fails to sufficiently establish by a preponderance of the evidence the probable validity that Defendant acquired title of the Subject Property with the intent to defraud Plaintiff.

    

2. Quiet Title (6^th cause of action)

    

   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.)

    

   As stated above, Plaintiff failed to submit admissible evidence in support of her claim.  (Evid. Code §702; see Decl. of Pourat, pg. 4; C.C.P. §446.)

    

   Accordingly, Plaintiff’s complaint fails to sufficiently establish by a preponderance of the evidence the probable validity of her quiet title cause of action.

    

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

    

             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.”

    

             Defendant requested attorneys’ fees and costs on this motion in a subsequent motion for fees and costs when all fees are known.  Defendant may submit a motion in support of his request for attorneys’ fees and costs against Plaintiff in connection with this motion.

    

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

    

    

    

   Dated:  January _____, 2023

                                                                                                                          

   Hon. Monica Bachner

   Judge of the Superior Court