Judge Peter A. Hernandez, Case Number: 24STCV07526, Date: 2025-01-30 Tentative Ruling

Judge: Peter A. Hernandez, Case: 24STCV07526, Date: 2025-01-30 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 24STCV07526 Hearing Date: January 30, 2025 Dept: 34

Defendant Paul Miller’s Motion to Expunge Lis Pendens is GRANTED in part.

The lis pendens recorded on September 13, 2024 is DECLARED void ab initio. The Los Angeles County Recorder is ORDERED to remove this erroneously-recorded instrument from its records.

The other requests for relief in Defendant’s motion, including expungement of the lis pendens, undertaking, and the request for attorney’s fees and costs, are DENIED.

Background

On March 26, 2024, Plaintiff Candido Santana (“Plaintiff”) filed a complaint against Defendant Paul Miller (“Defendant”) arising from the foreclosure of a property located at 219 E. 69th St., Los Angeles, CA 90003 alleging causes of action for:

1. Violation of Civ. Code § 2923.5;

2. Violation of Civ. Code § 2924.9;

3. Negligence;

4. Wrongful Foreclosure;

5. Unfair Business Practices, Violation Of Bus. & Prof. Code § 17200, et seq.; and

6. Breach Of Contract.

On May 28, 2024, Defendant filed an answer to Plaintiff’s complaint.

On December 13, 2024, Defendant filed this Motion to Expunge Lis Pendens. No opposition or other response has been filed.

Legal Standard

“A party who asserts a claim to real property can record a notice of lis pendens, which serves as notice to prospective purchasers, encumbrancers and transferees that there is litigation pending that affects the property.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011; Code Civ. Proc., § 405.20.) “A lis pendens acts as cloud against the property, effectively preventing sale or encumbrance until the litigation is resolved or the lis pendens in expunged.” (Ibid.) A real property claim is defined as “the cause or causes of action in a pleading which 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, other than an easement obtained pursuant to statute by any regulated public utility.” (Code Civ. Proc., § 405.4.)

“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.” (Code Civ. Proc., § 405.30.) The court must order the lis pendens expunged if it finds that (a) there is no real property claim, (b) the claimant did not establish by a preponderance of the evidence the probable validity of the real property claim, or (c) adequate relief can be secured by giving an undertaking. (Code Civ. Proc., §§ 405.31-405.33.) The moving party can file evidence or declarations supporting the motion to expunge. (Code Civ. Proc., § 405.30.)

“Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion” to establish the existence of a real property claim or the probable validity of the underlying claim by a preponderance of evidence. (Code Civ. Proc., §§ 405.30-405.32; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647; Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) A real property claim has “probable validity,” if it is more likely than not that the claimant will obtain a judgment against the defendant on that claim. (Code Civ. Proc., §§ 405.3, 481.190.)

Discussion

Request for Judicial Notice

Defendant’s request for judicial notice is granted. “A court may properly take judicial notice of its own records. (Evid. Code, § 452, subd. (e).)” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)

Merits

Defendant moves for a court order expunging the lis pendens filed by Plaintiff in September 2024 in connection with the instant lawsuit. (Motion at p. 5.) Defendant contends that the lis pendens should be expunged because Plaintiff recorded it without obtaining judicial approval, and because Plaintiff fails to state a real property claim or prove the probable validity thereof. (Id., at pp. 7-10.)

On September 13, 2024, Plaintiff recorded a lis pendens on the property located at 219 E. 69th St., Los Angeles, CA 90003 (“Subject Property”). (Defendant’s RNJ, Exh. 2.). Plaintiff, who was representing herself in propria persona, requested the recording herself — not through an attorney. (Id.) Plaintiff did not seek prior approval from court before recording the lis pendens. Plaintiff did not file the lis pendens with the court following its recordation, nor has Plaintiff filed a proof of service with the court regarding the lis pendens.

A lis pendens “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 action is subject to Section 405.6 [involving eminent domain actions by public agencies].” (Code Civ. Proc., § 405.21.)

While Plaintiff is represented in this litigation, it appears that Plaintiff filed the Lis Pendens in propria persona. (RJN, No. 2.) It was not signed by his attorney. (Ibid.) Thus, he was required to request approval for recording the lis pendens prior to recording it. (Code Civ. Proc., § 405.21.) Plaintiff did not seek such approval prior to recording the lis pendens. Thus, the lis pendens should not have been recorded, and the Los Angeles County Recorder’s Office erred in recording the lis pendens. Thus, the lis pendens is void ab initio in its entirety.

Notably, “the failure to provide for expungement explicitly, by statute, strengthens our conclusion that the Legislature did not intend to¿require¿that a void lis pendens be expunged.” (Carr v. Rosen (2015) 238 Cal.App.4th 845, 857, emphasis in original; see also Code Civ. Proc., §§ 405.30, et seq. [involving expungement of recorded lis pendens], 405.50 [involving withdrawal of recorded lis pendens].)

Here, because the lis pendens is void ab initio and no lis pendens should have been recorded, expungement is not appropriate. The court need not, and does not, consider Defendant’s arguments regarding expungement, including any issues with attorney’s fees and costs pursuant to Code of Civil Procedure section 405.38 and ordering an undertaking.

Conclusion

Defendant Paul Miller’s Motion to Expunge Lis Pendens is GRANTED in part.

The lis pendens recorded on September 13, 2024 is DECLARED void ab initio. The Los Angeles County Recorder is ORDERED to remove this erroneously-recorded instrument from its records.

The other requests for relief in Defendant’s motion, including expungement of the lis pendens, undertaking, and the request for attorney’s fees and costs, are DENIED.