Judge: Robert B. Broadbelt, Case: 19STCV32910, Date: 2023-01-06 Tentative Ruling

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Case Number: 19STCV32910    Hearing Date: January 6, 2023    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. 

The court notes that Plaintiff filed an opposition to this motion on January 4, 2023.  Plaintiff was required to file an opposition no later than nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  Accordingly, Plaintiff’s opposition is untimely.  The court therefore orders that the opposition filed by Plaintiff on January 4, 2023, is stricken.

DISCUSSION

On September 21, 2020, plaintiff Los Angeles Defiant Ones (“Plaintiff”) filed the operative First Amended Complaint in this action against defendants Gerald D. Daily, Jimie Gibbs, and Andrew Thompson.

On September 21, 2020, Plaintiff filed a Notice of Pending Action with the court, stating that the real property commonly known as 8201 South Central Avenue, Los Angeles, California, is the subject of this action.  The notice was recorded by Plaintiff on November 16, 2020.  (June 20, 2022 Motion for Order to Expunge Notice of Pendency of Action, Pettway Decl., Ex. 5.)  On August 30, 2022, the court granted defendants Gerald D. Daily and Andrew Thompson’s motion to expunge notice of pendency of action, and ordered that the Notice of Pendency of Action recorded against the property known as 8201 South Central Avenue, Los Angeles, California, on November 16, 2020, is expunged.

On September 30, 2022, Plaintiff filed a second Notice of Pending Action with the court, attaching a copy of the Notice of Pending Action recorded by Plaintiff on September 19, 2022.  The September 19, 2022 Notice of Pending Action states that the real property commonly known as 8201 South Central Avenue, Los Angeles, California is the subject of this action.  (Sep. 30, 2022 Notice, Attachment A, p. 2.)

Defendants Gerald D. Daily and Andrew Thompson (“Defendants”) now move the court for an order (1) expunging the Notice of Pendency of Action that was recorded by Plaintiff on September 19, 2022, and (2) awarding attorney’s fees and costs to Defendants in the amount of $3,011.65.

The court finds that the notice of pending action recorded by Plaintiff on September 19, 2022 is improper because it was recorded without leave of court, and therefore grants Defendants’ motion to expunge the notice of pendency of action.  (Code Civ. Proc., § 405.36.)

“When a lis pendens has been expunged, the claimant may record another notice of pendency of action only with leave of court.”  (Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 809; Code Civ. Proc., § 405.36 [“Once a notice of pending action has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending”].)  “To allow a party to record, at will, a second notice of lis pendens after the first had been expunged would simply invite more of the abuse which the statute was intended to cure.”  (Ranchito Ownership Co. v. Superior Court (1982) 130 Cal.App.3d 764, 771.)

As set forth above, on August 30, 2022, the court ordered that the notice of pendency of action recorded by Plaintiff against the property commonly known as 8201 South Central Avenue, Los Angeles, California, on November 16, 2020, was expunged.  (Aug. 30, 2022 Order, p. 5:11-13.)  Thus, Plaintiff was required to obtain leave of court to record another notice of pending action against the affected property (i.e., the property known as 8201 South Central Avenue, Los Angeles, California).  (Code Civ. Proc., § 405.36.)  Plaintiff did not file a motion requesting the court grant it permission to file a second notice before recording the September 19, 2022 notice of pending action.  The court finds that Plaintiff’s filing and recording of the second notice of pending action as to the same affected property is in violation of Code of Civil Procedure section 405.36.

The court grants Defendants’ request that the court award them the reasonable attorney’s fees and costs incurred in bringing this motion.  (Code Civ. Proc., § 405.38.)  The court finds that $3,011.65 is a reasonable amount of attorney’s fees and costs to award to Defendants in connection with this motion.  (Pettway Decl., ¶¶ 14-22.)

ORDER

The court grants defendants Gerald D. Daily and Andrew Thompson’s motion to expunge notice of pendency of action.

The court orders that the Notice of Pending Action recorded by plaintiff Los Angeles Defiant Ones MC, LLC on September 19, 2022, against the real property commonly known as 8201 South Central Avenue, Los Angeles, California, is expunged.

The court orders that plaintiff Los Angeles Defiant Ones MC, LLC may not record another notice of pending action as to the real property described above without first obtaining leave of court to do so.  (Code Civ. Proc., § 405.36.)

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 amount of $3,011.65 within 30 days of the date of this order.

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

IT IS SO ORDERED.

DATED:  January 6, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court