Judge: Olga Alvarez, Case: 37-2022-00000880-PR-LA-CTL, Date: 2023-12-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 05, 2023

12/06/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Letters Of Administration Motion Hearing (Probate) 37-2022-00000880-PR-LA-CTL ESTATE OF BILLY JOYCE DAVIS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 10/09/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Expunge Lis Pendens filed by Waypoint Development, LLC (ROA 99) is GRANTED. The request for attorney's fees is GRANTED as modified.

The Request for Judicial Notice (ROA 103) is GRANTED pursuant to EC § 452(c) as county records.

I. BACKGROUND Billie Joyce Davis ('Decedent') died on November 11, 2017.

On January 7, 2022, Decedent's daughter, Donna Davis ('Petitioner'), filed a petition to be appointed as the administrator of Decedent's estate. (ROA 1.) On February 14, 2022, Petitioner filed a Request for Order Directing Conveyance or Transfer of Property to Estate, as amended. (ROA 9, amended at ROA 19.) The Petition alleged that: on April 10, 2020, American Lending and Holding, LLC ('American Lending') and Mason Memorial Church of God in Christ of San Diego, Inc. ('Mason Memorial'), transferred the real property located at 740 47th Street, San Diego, CA 92102 ('Property') to Southern California Second Ecclesiastical Jurisdiction, Church of God in Christ, San Diego ('Respondent'); that transfer was contrary to a stipulation and order entered into on July 3, 2019, in case number 37-2018-00009691-CU-OR-CTL ('2018 Quiet Title Action'); '[p]ursuant to the terms of the Stipulation and Order, Defendants agreed to transfer 100% interest in the Real Property to PASTOR MASON MEMORIAL CHURCH OF GOD'; and 'Decedent's estate is the sole owner of the MASON MEMORIAL CHURCH OF GOD, Corporation, registered on 8/13/1980, File Number C0995354.' On April 15, 2022, Respondent filed an objection to the Petition. (ROA 17.) Respondent argued that: Mason Memorial is a non-profit religious corporation; Petitioner cannot disregard the corporate entity and claim that the corporation's assets are the personal assets of Decedent; non-profit religious corporations have no owners and do not issue stock; Mason Memorial has not issued any stock; and Decedent resigned from Mason Memorial in 2015.

On April 25, 2022, Petitioner filed an Amended Petition for Request for Order Directing Conveyance or Transfer of Property to Estate ('FAP'). (ROA 19.) The FAP deleted the allegation that Decedent's estate Calendar No.: Event ID:  TENTATIVE RULINGS

3046624 CASE NUMBER: CASE TITLE:  ESTATE OF BILLY JOYCE DAVIS [IMAGED]  37-2022-00000880-PR-LA-CTL is the sole owner of Mason Memorial and instead alleged: 'Decedent's estate is the sole owner of the REAL PROPERTY - not Mason Memorial Church of God, Corporation, registered on 8/13/1980, File Number C0995354 based on following: (1) Pursuant to a deed dated on or after August 25, 1980, Mason Memorial Church of God, Inc. transferred all of its interests, known or unknown, in the Real Property, to Glorious Church of Jesus Christ, Inc., divesting itself of any ownership interest in said real property; and thereafter, (2) Glorious Church of Jesus Christ, Inc. transferred its entire interest to Marvin Davis, married man; and (3) 6/2/92, Decedent and her husband obtained a mortgage as joint tenants of Real Property.' (ROA 19, ¶ 6.) On May 3, 2022, Petitioner filed a 'Second Amended Petition (1) To Quiet Title to Real Property [Code Civ. Proc. §§ 760.020(a), 761.020] Title by Adverse Possession [Code Civ. Proc. §§ 321&325] and (2) For Request for Order Directing Conveyance or Transfer of Property to Estate [Prob. Code § 850(a)(2)(D)]' ('SAP'). (ROA 27.) The SAP alleges that there are two distinct entities under the name Mason Memorial: (1) 'Mason Memorial Church of God in Christ of San Diego, a Corporation registered on 8/13/1980, File Number C0995354,' which the court will refer to as 'Mason Memorial of San Diego'; and (2) 'Mason Memorial Church of God in Christ in San Diego, Inc.,' which the court will refer to as 'Mason Memorial in San Diego.' The SAP alleges that: in 1980, title to the Property was transferred to Mason Memorial in San Diego; none of the subsequent transfers of the Property were executed by Mason Memorial in San Diego and are therefore invalid; Mason Memorial in San Diego was never registered as a corporation; Mason Memorial in San Diego was an entity that was owned by Decedent and her spouse; and Mason Memorial of San Diego never obtained title to the Property. The SAP also alleges that the transfers of the Property after 1980 are invalid due to undue influence, duress, fraud, and Decedent's lack of capacity, and that Decedent has a right to the Property by adverse possession.

On May 20, 2022, Respondent filed a demurrer to the SAP (ROA 30), which the Court sustained without leave to amend on August 3, 2022. (ROA 54.) On August 8, 2022, Petitioner filed a Withdrawal of Lis Pendens, withdrawing the Notice of Lis Pendens recorded against the Property on February 1, 2022. (ROA 54.) Petitioner appealed the trial court's ruling, which was affirmed in full. (Davis v. Southern California Second Ecclesiastical Jurisdiction Church of God in Christ, San Diego (Oct. 18, 2023, D081009) [nonpub. opn.].) On October 9, 2023, Waypoint Development, LLC ('Waypoint') filed the instant motion to expunge lis pendens. (ROA 99.) Waypoint moves for an order expunging lis pendens pursuant to CCP § 405.30 on the ground that on September 2, 2022, Petitioner recorded an invalid lis pendens against the Property (740 47th Street, San Diego, CA 92102). (ROA 99.) Waypoint argues the lis pendens must be expunged for the following reasons: (1) Petitioner signed the lis pendens in her own name, in pro per, without court approval as required under statute; (2) Petitioner never obtained leave from the Court to file and record a second lis pendens after the first lis pendens was expunged by court order; (3) the lis pendens is void and invalid on its face as it was recorded without attaching a proof of service as required; (4) the lis pendens is void and invalid on its face because Petitioner failed to serve the owner of record, Waypoint; (5) the lis pendens is void and invalid because Petitioner never filed the lis pendens with the Court; and (6) Petitioner cannot establish, by a preponderance of the evidence, the probable validity of her real property claim given the Court's ruling sustaining without leave to amend the demurrer filed against the Petition.

Waypoint further argues it is entitled to reasonable attorney's fees in the amount of $6,880 based on counsel's billing rate of $400 per hour, and $60 in costs in bringing this motion. Waypoint claims its attorneys spent 8.2 hours drafting this motion, 4.5 hours researching the law and drafting the ex parte application for leave to file the instant motion, and they anticipate spending 3.5 hours in drafting a reply brief and attending the hearing on the motion.

The Court is not in receipt of any opposition from Petitioner.

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3046624 CASE NUMBER: CASE TITLE:  ESTATE OF BILLY JOYCE DAVIS [IMAGED]  37-2022-00000880-PR-LA-CTL II. DISCUSSION '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.' (CCP § 405.30.) '[A] person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice.' (Id.) The claimant bears the burden of proof pursuant to CCP §§ 405.31 and 405.32. (Id.) '[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.' (CCP § 405.32; CCP § 405.31 ['the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.'].) Any lis pendens 'shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner' and a proper proof of service consistent with the requirements of CCP § 1013a has been recorded with the lis pendens. (CCP § 405.23.) A notice of pendency of action shall not be recorded unless: (a) it has been signed by the attorney of record; (b) it is signed by a party acting in propria persona and approved by a judge as provided in this section; or (c) the matter involves an action by a public agency in eminent domain. (CCP § 405.21.) Here, Waypoint purchased the Property from Southern California Second Ecclesiastical Jurisdiction, Church of God in Christ, San Diego, on or about May 10, 2022, and the grant deed transferring the Property was recorded on August 31, 2022. (ROA 101, Rucker Decl., Exh. A 'Grant Deed.') Petitioner recorded a lis pendens on September 2, 2022, against the Property, after the demurrer to her petition was sustained without leave to amend and the matter was effectively dismissed. (Id., at Exh. B 'Notice of Lis Pendens.') Further, the recorded lis pendens is not signed by an attorney or approved by the Court, and thus, fails to comply with the requirements set forth under CCP § 405.21. Indeed, there is no proof of service of the notice of lis pendens on any party, and the notice of lis pendens was not filed with the court immediately following recordation, as required under CCP § 405.22. Thus, the lis pendens is void and invalid.

Waypoint moved ex parte for leave to file the instant motion, and otherwise complied with CCP § 403.30.

The Court is not in receipt of any opposition from Petitioner. Under Local Rule 2.1.19(B), '[t]he court may deem a lack of opposition to be a concession that a motion is meritorious.' Therefore, Waypoint's motion to expunge lis pendens is GRANTED. The lis pendens recorded on September 2, 2022, against the Property is ordered expunged.

As to attorney's fees, the request is GRANTED as modified.

'The court shall direct that the party prevailing on any motion under this chapter 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.' (CCP § 405.38, emphasis added.) Attorney Rhine declares that he has billed $5,080 (based on 8.2 hours of work to draft the motion and 4.5 hours expended on research and the ex parte application), and counsel anticipates billing an additional $1,400 (based on 3.5 hours to draft the reply and attend the hearing on the motion), for a total amount of $6,880 plus a filing fee of $60. (See ROA 102.) The Court finds the billing rate is reasonable, but the requested number of hours is not justified given that Petitioner has not filed any opposition and no reply has been filed. Further, considering the nature and scope of the motion, a total of 8.2 hours to research and draft the motion appears excessive, Calendar No.: Event ID:  TENTATIVE RULINGS

3046624 CASE NUMBER: CASE TITLE:  ESTATE OF BILLY JOYCE DAVIS [IMAGED]  37-2022-00000880-PR-LA-CTL particularly considering that Waypoint had already filed an ex parte application with the relevant law prior to filing the motion. Thus, the Court reduces the number of hours to 5 hours for the motion. Five hours for the motion, 4.5 for the ex parte application, and 1 hour to attend the hearing at $400 per hour, plus the $60 filing fee, yields a total of $4,260 ([10.5 hours x $400] + $60 = $4,260).

Therefore, the request for attorney's fees is GRANTED in the amount of $4,260.

Counsel for Waypoint is directed to serve written notice of ruling on all parties in compliance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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