Judge: Robert B. Broadbelt, Case: 20STCV43833, Date: 2022-08-02 Tentative Ruling

Case Number: 20STCV43833    Hearing Date: August 2, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Paladar Capital Investments, LP

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.

BACKGROUND

Plaintiff Felisa Dee Richards (“Plaintiff”) filed this wrongful foreclosure action on November 17, 2020.  On December 10, 2021, Plaintiff filed the operative First Amended Complaint against defendants Gregory Funding, LLC, Affinia Default Services, LLC, Ajax Mortgage Loan Trust 2018-G, by U.S. Bank National Association as Indenture Trustee, Wells Fargo Bank, N.A., and Paladar Capital Investments, LP.  The First Amended Complaint alleges 23 causes of action, and asserts claims for wrongful foreclosure, quiet title, fraud, and violations of the Homeowners’ Bill of Rights and Fair Debt Collection Practices Act.

DISCUSSION

Plaintiff filed a Notice of Pendency of Action with the court on September 27, 2021, indicating that the real property located at 28040 Concord Avenue, Castaic, California 91384 (the “Property”) is the subject of this action.  On January 3, 2022, Plaintiff recorded a Notice of Pendency of Action indicating that Plaintiff filed a complaint against, inter alia, defendant Paladar Capital Investments LP (“Defendant”), relating to the Property and asserting claims for wrongful foreclosure and quiet title.  (Johnson Decl., Ex. 3.)

Defendant now moves the court for an order expunging the January 3, 2022 notice of pendency of action on the ground that Plaintiff cannot prove the probable validity of her claims. 

The court finds that Plaintiff has failed to meet her burden of establishing, by a preponderance of the evidence, the probable validity of her real property claims and therefore grants Defendant’s motion.  (Code Civ. Proc., § 405.32.)

“‘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, and Defendant does not appear to dispute, that Plaintiff’s operative complaint—alleging causes of action for wrongful foreclosure and quiet title—contains a real property claim.  (Weil and Brown, Civ. Proc. Before Trial (2018) § 9:431 [the allegations of the operative complaint determine whether a real property claim is involved].)

Second, the court finds that Plaintiff has failed to meet her burden to establish by a preponderance of the evidence the probable validity of her real property claims.  Defendant contends that Plaintiff cannot prevail on her claims against Defendant on the ground that Defendant is a bona fide purchaser that purchased the Property at a trustee’s sale on November 17, 2020.  (Johnson Decl., ¶¶ 2-3.)  Plaintiff has not filed opposition papers refuting Defendant’s position.

The burden of proving the probable validity of the 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., § 405.32.)  By failing to oppose Defendant’s motion, Plaintiff has failed to present evidence or argument to the court establishing the probable validity, by a preponderance of the evidence, of her real property claims.

The court therefore must grant Defendant’s 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].)

ORDER

            The court grants defendant Paladar Capital Investment LP’s Motion to Expunge Lis Pendens.  (Code Civ. Proc., § 405.32.)

The court orders that the Notice of Pendency of Action recorded against the property commonly known as 28040 Concord Avenue, Castaic, California 91384 on January 3, 2022, as attached to the declaration of Casey Johnson as Exhibit 3, is expunged.

The court orders defendant Paladar Capital Investment, LP to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 2, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court