Judge: Robert B. Broadbelt, Case: 19STCV32910, Date: 2022-08-30 Tentative Ruling

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Case Number: 19STCV32910    Hearing Date: August 30, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Gerald D. Daily and Andrew Thompson

RESPONDING PARTY:        Unopposed

Motion to Expunge Notice of Pendency of Action

The court considered the moving papers filed in connection with this motion.  No opposition was filed.

DISCUSSION

On September 21, 2020, plaintiff Los Angeles Defiant Ones, MC, LLC (“Plaintiff”) filed a First Amended Complaint in this action. 

On September 21, 2020, Plaintiff filed a Notice of Pending Action with the court, indicating that the real property located at 8201 South Central Avenue, Los Angeles, California 90001 (the “Property”) is the subject of this action.  The notice further states that the object of the pending action concerns the complaint filed by Plaintiff against defendants Gerald D. Daily, Jimie Gibbs, and Andrew Thompson for breach of contract, constructive trust, declaratory relief, injunctive relief, and unjust enrichment.  Plaintiff’s notice was recorded on November 16, 2020.  (Pettway Decl., Ex. 5.)

Defendants Gerald D. Daily and Andrew Thompson (“Defendants”) now move the court for an order (1) expunging the Notice of Pendency of Action filed by Plaintiff on September 21, 2020 and recorded on November 16, 2020, and (2) awarding Defendants attorney’s fees and costs in the sum of $3,139.15.  Defendants move on the grounds that Plaintiff cannot show the probable validity of its real property claim, and that Plaintiff failed to comply with the statutory service requirements.

The court finds that Plaintiff has failed to meet its burden of establishing, by a preponderance of the evidence, the probable validity of its real property claims.  (Code Civ. Proc., § 405.32.)  The court further finds that Plaintiff’s notice of pendency of action is void and invalid for its failure to comply with the service requirements set forth in section 405.22.  (Code Civ. Proc., § 405.23.)  The court therefore grants Defendants’ motion to expunge the notice of pendency of action.

“‘A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice.’”  (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.)  Any time after a notice of pendency of action has been recorded, any party or nonparty with an interest in the real property affected thereby may move the court in which the action is pending to expunge the notice.  (Code Civ. Pro., § 405.30.) The court must order the notice expunged if the court finds any of the following: the pleading on which the notice is based does not contain a real property claim; the claimant has not established by preponderance of the evidence the probable validity of the real property claim; or the real property claim has probable validity, but adequate relief can be secured by the giving of an undertaking.  (Code Civ. Pro., §§ 405.31-405.33.)

First, the court finds that Plaintiff’s First Amended Complaint contains real property claims.  (Weil and Brown, Civ. Proc. Before Trial (2018) § 9:431 [the allegations of the operative complaint determine whether a real property claim is involved].)  Plaintiff’s operative complaint (1) alleges, in its first cause of action, that Defendants wrongfully took ownership of the Property; (2) as to its third cause of action, requests a judicial declaration that Plaintiff “is the rightful, legal and equitable owner of the subject property in fee simple subject only to the purchase money deed of trust secured by the [P]roperty upon its purchase on or about July 26, 2000”; (3) as to its fourth cause of action, seeks an order enjoining Defendants from refinancing, selling, or otherwise encumbering the Property; and (4) as to its fifth cause of action, alleges that Defendants are wrongfully claiming ownership in the Property and have been unjustly enriched by their acquisition of the Property.  (FAC ¶¶ 16, 25, 28-29, 31-32.)  Plaintiff’s claims would, if meritorious, affect title to, or the right to possession of, the Property, and therefore constitute real property claims.  (Code Civ. Proc., § 405.4.)

Second, the court finds that Plaintiff has failed to meet its burden to establish the probable validity of its real property claims by a preponderance of the evidence.  (Code Civ. Proc., § 405.32.)  Defendants contend that Plaintiff cannot establish the probable validity of its claims because (1) the recorded title deed is in Defendants’ names, (2) Plaintiff cannot produce evidence establishing that title was ever transferred to it, and (3) Plaintiff has neither held itself out to be the owner of the Property nor acted as an owner in any regard.

The burden of proving the probable validity of real property claims is placed on the claimant, i.e., Plaintiff.  (J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 33; Code Civ. Proc., § 405.30 [“The claimant shall have the burden of proof under Sections 405.31 and 405.32”].)  By failing to oppose this motion, Plaintiff has failed to meet its burden to establish the probable validity of its real property claims by a preponderance of the evidence.

The court is therefore required to grant Defendants’ motion and expunge the notice of pendency of action.  (Code Civ. Proc., § 405.32 [the court “shall” order the notice expunged if the claimant has not established the probable validity of the real property claim].)

In addition, the court further finds that Defendants have presented evidence and argument establishing that the notice is void and invalid for failing to comply with the service requirements of section 405.22.  Prior to recording a notice of pendency of action, a claimant shall “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.”  (Code Civ. Proc., § 405.22.)  “[S]ubstantial compliance satisfies the mailing requirement of section 405.22.”  (J&A Mash & Barrel, LLC, supra, 74 Cal.App.5th at p. 29.)  Any notice of pendency of action that fails to satisfy, or substantially comply with, the requirements of section 405.22 “shall be void and invalid as to any adverse party or owner….”  (Code Civ. Proc., § 405.23.)  “A party contending that a lis pendens is ‘void and invalid’ for purposes of section 405.23 due to defective service may raise this ground in a motion for expungement filed pursuant to section 405.30.”  (J&A Mash & Barrel, LLC, supra, 74 Cal.App.5th at pp. 24-25.)

The Proof of Service attached to the recorded notice of pendency of action states that Legrand H. Clegg II, Esq., Gerald Daily, and Jimie Gibbs were served with a document entitled “DECLARATION RE: NOTICE OF LATE FILING” on September 21, 2020 by email and first class mail.  (Pettway Decl., Ex. 5, Proof of Service; Plaintiff’s September 21, 2020 Notice of Pending Action, p. 3.)  The court therefore finds that Plaintiff failed to substantially comply with the service requirements set forth in section 405.22.  The Proof of Service states that a declaration regarding notice of late filing was served on September 21, 2020; the Proof of Service fails to establish that the notice of pendency of action was ever served on Defendants, or that the notice of pendency of action was served by registered or certified mail as required by section 405.22.  Moreover, prior and current defense counsel of record attest in their declarations that they have not been served with the notice of pendency of action.  (Clegg Decl., ¶¶ 9-10; Pettway Decl., ¶¶ 6-7.)

Accordingly, the court finds that the notice of pendency of action is void and invalid based on improper service, which establishes an additional ground for expungement.  (Code Civ. Proc., § 405.23; J&A Mash & Barrel, LLC, supra, 74 Cal.App.5th at pp. 24-25.)

The court grants Defendants’ request for attorney’s fees and costs.  (Code Civ. Proc., § 405.38.)  The court finds that $3,139.15 (12.05 hours x Pettway’s $250 hourly rate + $126.65 in costs) is a reasonable amount of attorney’s fees and costs to be awarded against Plaintiff and in favor of Defendants in connection with this motion.

ORDER

            The court grants defendants Gerald D. Daily and Andrew Thompson’s Motion to Expunge Notice of Pendency of Action.  (Code Civ. Proc., §§ 405.32, 405.23.)

The court orders that the Notice of Pendency of Action recorded against the property commonly known as 8201 South Central Avenue, Los Angeles, California on November 16, 2020, as attached to the declaration of Donna D. Pettway as Exhibit 5, is expunged.

The court orders plaintiff Los Angeles Defiant Ones MC, LLC to pay to defendants Gerald D. Daily and Andrew Thompson attorney’s fees and costs in the sum of $3,139.15 within 30 days from the date of this order.  (Code Civ. Proc., § 405.38.)

The court orders defendants Gerald D. Daily and Andrew Thompson to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 30, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court