Judge: Serena R. Murillo, Case: 19STCV25754, Date: 2023-11-02 Tentative Ruling
Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.
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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 19STCV25754 Hearing Date: November 2, 2023 Dept: 31
TENTATIVE
Plaintiff’s motion to set aside is DENIED.
Pencor’s unopposed motions to intervene and expunge the lis pendens are GRANTED. The notice of lis pendens recorded on 732 117th St., Los Angeles, CA 90044 is EXPUNGED. Plaintiff and is ordered to pay attorney’s fees and costs of $2,210 to Pencor’s counsel within 30 days of this order.
Legal Standard
Motion to Set Aside Dismissal
Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP §473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)
Leave to Intervene
CCP section 387(d) provides the following:
(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
(A) A provision of law confers an unconditional right to intervene.
(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.
(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.
(Code Civ. Proc., § 387(d).)
Expunge Lis Pendens
Any party or a non-party having an interest in the property affected by a notice of lis pendens may move for expungement any time after the lis pendens is recorded. However, 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. (Code Civ. Proc. § 405.30.) A lis pendens must be removed for being improper on account of: (a) the¿pleading on which the notice is based not containing a real property claim, assuming the allegations to be true, (Code Civ. Proc. § 405.31; Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149), or (b) the claimant not being able to establish by a preponderance of the evidence the probable validity of the real property claim (Code Civ. Proc. § 405.32; Ziello v. Superior Court (1995) 36 Cal.App.4th 321, 331-32.)
A “real property claim” means 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.)
Pursuant to Code of Civil Procedure section 405.32, “the 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.” (Code Civ. Proc. § 405.32.) The claimant, not the moving party, has the burden of proof to establish a valid real property claim and likelihood of success. (Code Civ. Proc. §§ 405.30, 405.31, 405.32; Malcolm v. Superior Court (1981) 29 Cal.3d 518, 525-26.) Only admissible or verified evidence is permitted on the motion. (See Burger v. Superior Court (1984) 151 Cal.App.3d 1013, 1019.) To carry the burden on a motion to expunge lis pendens, the moving party, “must ‘at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) Moreover,“‘[p]robable validity,’ in connection with a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” (Code Civ. Proc. § 405.3; see also Code Civ. Proc. § 481.190 [“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”].)
“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.” (Code Civ. Proc. § 405.36.)
“The court shall direct that the party prevailing on any motion [to expunge lis pendens] 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.)
Request for Judicial Notice
“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code § 450.) The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state, as well as records of any court of this state or another state. (Evid. Code § 452(c)-(d).) The court may take judicial notice of a recorded deed as an official act of the state’s executive branch. (Ragland v. US Bank Nat’l Ass’n. (2012) 209 Cal.App.4th 182, 194; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803.) The court is not mandated to accept the truth of the judicially noticed document’s contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Pencor requests judicial notice of the following: (1) the first amended complaint in this case; (2) “Trustee’s Deed Upon Sale” recorded on February 22, 2023, in the Official Records of the County of Los Angeles as document number 20230112383; (3) “Notice of Pendency” recorded on August 7, 2019, in the Official Records of the County of Los Angeles as document number 20190786556; (4) “Notice of Claim of Ownership,” filed on or about July 3, 2023, in this case; and (5) “Minute Order” dismissing amended complaint, filed on or about July 3, 2023 in this case.
Pencor’s request for judicial notice is GRANTED.
Discussion
1. Plaintiff’s Motion to Set Aside Dismissal
First, Plaintiff moves to set aside the dismissal. The case was dismissed without prejudice pursuant to Court of Civil Procedure section 581(b)(3) on July 3, 2023. Plaintiff filed the subject motion on July 13, 2023. which was within six months of entry of the dismissal, and thus, the subject motion is timely. (See Code Civ. Proc., § 473(b).)
Next, the Court notes that Plaintiff seeks relief under the discretionary portion of section 473(b), as it does not attribute fault to her attorney, and therefore cannot move under the mandatory prong. The Court finds that Plaintiff has failed to make any showing of mistake, inadvertence, surprise, or excusable neglect. Rather, she simply expresses her frustration over her former counsel. Thus, the Court cannot grant the motion to set aside dismissal.
2. Pencor’s Motion to Intervene
Second, Pencor, Inc. moves to intervene in this matter in order for the Court to hear its motion to expunge the lis pendens.
Arguably, dismissal of the action deprived this Court of jurisdiction over the instant matter. Notwithstanding the general principle that dismissal of an action deprives the Court of jurisdiction, this Court finds that it may act to expunge a lis pendens arising from the action, as is specifically provided for by CCP § 405.30. (See Cornell v. Select Portfolio Servicing, Inc. (E.D. Cal., Nov. 29, 2011, No. CIV S-11-1462 KJM) 2011 WL 6097721 at *2 (applying California law) [finding jurisdiction to expunge lis pendens under CCP § 405.30 because otherwise “any person could hypothetically cloud title in perpetuity by maintaining a lis pendens on real property even after the claims upon which the lis pendens is filed have been dismissed and are no longer pending”].)
In accordance with CCP § 405.30, Pencor as a non-party seeks to intervene so that it can move to expunge the lis pendens recorded against the subject property. With respect to Pencor’s motion to intervene, the Court concludes that Pencor has an interest in the subject property. Pencor purchased the property at a nonjudicial foreclosure sale. (RJN Ex. 2; Ex. 4.) Following the Court’s dismissal of her first amended complaint (“FAC”), Plaintiff refused to voluntarily withdraw the lis pendens that is placing a cloud on Pencor’s title. (Meleski Decl. ¶ 5.) Intervention by Pencor is therefore appropriate. (CCP § 387(d)(1)(B).)
3. Pencor’s Motion to Expunge Lis Pendens
As for expungement of the lis pendens, because the action was dismissed on July 3, 2023, plaintiff no longer has a real property claim. Moreover, this Court previously sustained a demurrer without leave to amend due to the claims regarding the property being time-barred. Additionally, despite proper notice, plaintiff did not file an opposition. Accordingly, plaintiff has not met her burden to establish the existence of a real property claim, or likelihood of success. The claimant, not the moving party, has the burden of proof to establish a valid real property claim and likelihood of success. (Code Civ. Proc. §§ 405.30, 405.31, 405.32; Malcolm v. Superior Court (1981) 29 Cal.3d 518, 525-26.)
Accordingly, the motion to expunge the lis pendens is granted.
Request for Attorney’s Fees
Pursuant to CCP § 405.38, because Pencor has prevailed, the Court awards Pencor reasonable attorney fees and costs. Pencor requests attorney fees for 6.2 hours of time drafting this motion, 2 hours for preparing and attending the hearing, and another 2 hours to review the opposition and draft a reply, at $350 per hour. Plaintiff is ordered to pay intervenor Pencor $2,210 (6.2 hours for preparing motion as requested and 1 hour preparing for and attending hearing (instead of 2 hours requested) and removing another 2 hours as there is no opposition and no reply) at $350 per hour, plus $40 in filing fees), payable to Pencor’s counsel within 30 days of this order. The Court has no basis to find that sanctions would be unjust in light of the lack of opposition.
Conclusion
Based on the foregoing, Plaintiff’s motion to set aside is DENIED.
Pencor’s motions to intervene and expunge the lis pendens are GRANTED. The notice of lis pendens recorded on 732 117th St., Los Angeles, CA 90044 is EXPUNGED. Plaintiff and is ordered to pay attorney’s fees and costs of $2,210 to Pencor’s counsel within 30 days of this order.
Moving party is ordered to give notice.