Judge: Nathan Vu, Case: 30-2022-01255247, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Expunge Lis Pendens
Defendant Mary Nichols’ motion to expunge lis pendens is GRANTED.
Defendant Mary Nichols’ request for attorney’s fees and costs is GRANTED.
Plaintiff Ruben Munoz is ORDERED to pay to Defendant Mary Nichols reasonable attorney’s fees and costs in the amount of $3,460, within 30 days of the service of the notice of ruling.
Defendant Mary Nichols’ request for judicial notice is DENIED as to Exhibits 1 and 4, and GRANTED as to Exhibits 2-3 and 5-12.
Defendant Mary Nichols moves to expunge the lis pendens recorded by Plaintiff Ruben Munoz on 05/02/2022 as Instrument No. 2022000165108 upon the real property located at 5681 Orange Avenue, Cypress, California (Subject Property).
Recording Lis Pendens
Civil Procedure Code section 405.20 provides that a party to an action who asserts a “real property claim” may record a notice of pendency of action in which that real property claim is alleged, in other words, a lis pendens.
A “real property claim” that properly supports a lis pendens is one that “would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading . . . .” (Civil Proc. Code, § 405.4; Martin v. Lawrence (1909) 156 Cal. 191 [holding cause of action for cancellation of deed or instrument affecting ownership or possession of real property to be proper for lis pendens].)
Expunging Lis Pendens
In addition to enacting procedures to record lis pendens, the Legislature also created procedures to expunge them as well. The purpose of such procedures was to timely weed out groundless claims and to mitigate against and control misuse of the lis pendens procedure. (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1375-1376; Castro v. Superior Ct. (2004) 116 Cal.App.4th 1010, 1023.)
Pursuant to Civil Procedure Code section 405.30, anyone with an interest in real property may move a court for an order expunging a lis pendens. The court “shall” grant a motion to expunge if either: (1) the pleading upon which the lis pendens is based does not contain a real property claim; or (2) the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Civil Proc. Code, §§ 405.31, 405.32.)
The burden of proof rests with the party responsible for filing the lis pendens. (Amalgamated Bank v. Super. Ct. (2007) 149 Cal.App.4th 1003, 1007; Shah v. McMahon (2007) 148 Cal.App.4th 526, 529.)
Real Property Claim
The test to determine whether or not a cause of action is a “real property claim” turns on the adequacy of the pleadings and not evidence submitted for or against the issue. In other words, trial courts engage in a “demurrer-like” review only. (Kirkeby v. Superior Ct. (2004) 33 Cal.4th 642, 647-48; Campbell v. Superior Ct. (2005) 132 Cal.App.4th 904, 911.)
Plaintiff’s first cause of action for fraud and deceit and second cause of action for intentional infliction of emotional distress seek only monetary damages, and thus do not affect the title to or the right to possession of specific real property or the use of an easement. They are thus not real property claims.
However, Plaintiff’s third cause of action for declaratory relief specifically pleads that there is a dispute regarding Plaintiff’s right to title and possession of the Subject Property. (See Compl., ¶¶ 41-42.) The third cause of action would, if meritorious, affect the title to or right to possession of specific real property, and thus qualifies as a real property claim.
Probable Validity of the Real Property Claim
In his third cause of action, Plaintiff contends that Defendant and her husband induced Plaintiff in 2019 to assign his beneficial interests in Sharon Vaughn’s estate to Defendant. (See Compl., ¶ 17.) Plaintiff contends that he has an interest in the Subject Property because the 2019 is unenforceable for a number of reasons: 1) he had no capacity to enter the agreement, 2) that the agreement was unconscionable because there was inadequate consideration, 3) that he signed it under duress and undue influence, and 4) that he was induced by fraud and deceit into assigning his interests. (See Compl., ¶¶ 43-46.)
However, even if the court assumed that the assignment was unenforceable, Plaintiff fails to show that he would otherwise have an interest in the Subject Property. Plaintiff executed an interspousal grant deed, which provides the Subject Property would be transferred to his then wife, Sharon Vaughn, “a married woman as her sole and separate property.” Plaintiff does not dispute the validity or enforceability of that transfer. Thus, the Subject Property was Vaughn’s sole and separate property upon her death.
Plaintiff argues that he is entitled to “the entirety of the community estate and at least one half of his deceased spouse’s separate property.” (Opp’n at p. 2:16-17.) Plaintiff’s argument, however, assumes that the rules of intestate succession, (see Prob. Code, § 6400 et seq.), apply to Vaughn’s estate.
Vaughn, however, died testate. (See RJN, Exh. 5, ¶ 4 [06/11/2021 Probate Court Order].) Therefore, her will — not the rules of intestate succession —govern the distribution of her separate property upon death. Plaintiff submits no evidence of Vaughn’s will or its provisions regarding the distribution of property.
However, the Probate Court ordered that the entirety of Vaughn’s estate’s interest in the Subject Property be awarded to Defendant. (Id., ¶ 16 [06/11/2021 Probate Court Order].) Thus, it is probable that Vaughn’s will decreed that the Subject Property pass to Defendant and not Plaintiff.
Furthermore, Plaintiff seeks declaratory relief that would be inconsistent with the prior orders of the Probate Court. Thus, Plaintiff’s third cause of action is unlikely to succeed because this court lacks the jurisdiction to grant such relief. Plaintiff’s claims appear to “concern[] the internal affairs of trusts” and therefore must be brought in the probate court. (Probate Code, § 17000(a).)
For these reasons, Plaintiff has failed to meet his burden to show the probable validity of his real property claim.
Attorney’s Fees
Civil Procedure Code section 405.38 provides:
The court shall direct that the party prevailing on any motion [to expunge or record lis pendens] 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.
(Civil Proc. Code, § 405.38.)
“This is the same standard applicable to rulings on discovery motions.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:463; see Castro v. Superior Ct. (2004) 116 Cal.App.4th 1010, 1023, fn. 13.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure. (J & A Mash & Barrel, LLC v. Superior Ct. (2022) 74 Cal.App.5th 1, 42, citing Castro v. Super. Ct. (2004) 116 Cal.App.4th 1010, 1022.)
In light of the above analysis, the court cannot say that Plaintiff acted with substantial justification. Further, while Plaintiff contends that he is “effectively homeless and destitute,” he provides no evidence of this contention. The court record shows no fee waiver. The court will award reasonable attorney’s fees of 8 hours and the filing fee.
Defendant shall give notice of this ruling.