Judge: Stephanie M. Bowick, Case: 24STCV19224, Date: 2024-12-11 Tentative Ruling
Case Number: 24STCV19224 Hearing Date: December 11, 2024 Dept: 19
After full consideration of the papers filed and oral
argument at the hearing, Defendant ¿Mark A. Ross’s Motion To Expunge Lis Pendens And Award Reasonable
Attorney’s Fees is GRANTED.
The Court orders the following expunged:
1. Instrument number 20240710132,
recorded on October 17, 2024, for 1230 East Ocean Blvd., Unit 702, Long Beach,
CA 90802, APN: 7265-007-155;
2. Instrument number 20240715359,
recorded on October 21, 2024, for 723 Elm Avenue, C, Long Beach, California
90813, APN: 7273-020-028;
3. Instrument number 20240716159,
recorded on October 21, 2024, for real property located at 1250 E. 4th Street,
No. 2, Long Beach, California 90802, APN: 7275-006-039; and
4. Instrument number 20240728836,
recorded on October 24, 2024, for real property located at 1250 E. 4th Street,
No. 3, Long Beach, California 90802, APN: 7275-006-040.
Accordingly, the Court
GRANTS Defendant’s request for an award of $4,759.61 in attorney’s fees and
costs.
Counsel for Defendant to give notice.
In the Verified First Amended Complaint (the “FAC”),
Plaintiff Linda May Thomas (“Plaintiff”) brings suit against Defendant Mark A.
Ross, ¿Administrator
Of The Estate Of Manolis Fragoudakis With Limited Authority And Will Annexed
(“Defendant”) alleging the following causes of action:
1.
¿Specific Performance Or Damages Based Upon Breach Of Contract;
2.
To
Impose Constructive Trust Based On Breach Of Contract;
3.
To
Impose Constructive Trust Or Damages Based On Breach Of Implied In Fact
Contract;
4.
Declaratory
Relief;
5.
Fraud
And Deceit;
6.
Intentional
Infliction Of Emotional Distress;
7.
Negligent
Infliction Of Emotional Distress; and
8.
Partition.
Plaintiff alleges that she was in a
romantic, cohabiting relationship with Decedent Manolis Fragoudakis (the
“Decedent”) and that an implied-in-fact contract existed between Plaintiff and
Decedent whereby Decedent agreed to give Plaintiff everything he owns in
consideration for Plaintiff taking care of him. (See FAC, ¶¶ 15-20.)
The FAC alleges that “[t]hrough the
years, Plaintiff and Decedent owned several pieces of real property together, both
buying and selling: 1757 East Baseline Road, Suite 123, Gilbert, Arizona 85233
(both bought and sold as joint tenants, 2006); 8552 West Malapai Drive, Peoria,
AZ 85345 (owned as joint tenants, 2009); 9816 West El Caminito Drive, Peoria,
AZ 85233 (owned as joint tenants, 2009); 15650 North 19th Avenue, #N1B (as
stated on title but known as #1002B), Phoenix, AZ 85023 (owned as joint
tenants, 2009). (Id. at ¶ 16.)
Plaintiff alleges that, “¿[w]hile Decedent was suffering from Parkinson’s and Dementia, and unable
to write or even hold a pen in his hand, the nephews took Decedent to a law
office and forced him to sign an illegal will and trust (excluding Plaintiff
and leaving the entire estate to themselves), by guiding his hand to obtain his
signature.” (Id. at ¶ 20.)
Plaintiff seeks specific performance
of the alleged implied-in-fact contract and partition of the real property.
On September 25, 2024, Plaintiff filed
a Notice of Pendency of Action (Lis Pendens) with respect to 1230 East Ocean
Boulevard, Unit 702, Long Beach, California 90802-6909 (Assessor’s Parcel
Number 7265-007-155) (the “Ocean Property”).
On October 16, 2024, Plaintiff filed a
Notice of Pendency of Action (Lis Pendens) with respect to 1250 East 4th
Street, No. 2, Long Beach, California 90802-7375 (Assessor’s Parcel Number
7275-006-040) (the “4th Street No. 2 Property”).
On October 16, 2024, Plaintiff filed a
Notice of Pendency of Action (Lis Pendens) with respect to 723 Elm Avenue, #C
Long Beach, California 90813-4478 (Assessor’s Parcel Number 7273-020-02) (the
“Elm Property”).
On October 25, 2024, Plaintiff filed a
recorded copy of the Notice of Pendency
of Action (Lis Pendens) for the Ocean Property, recorded on October 17, 2024 as
Instrument Number 20240710132 (the “Ocean Property Lis Pendens”).
On October 25, 2024, Plaintiff filed a
recorded copy of the Notice of Pendency
of Action (Lis Pendens) for the Elm Property, recorded on October 21, 2024 as
Instrument Number 20240715359 (the “Elm Property Lis Pendens”).
On October 25, 2024, filed a recorded
copy of a Notice of Pendency of Action (Lis Pendens) for real property located
at 1250 East 4th Street, No.3, Long Beach, California 90802-7375 (Assessor’s
Parcel Number 7275) (the “4th Street No. 3 Property”), recorded on October 24,
2024 as Instrument No. 20240728836 (the “4th Street No. 3 Property Lis
Pendens”).
On October 29, 2024, Defendant filed
the instant ¿Motion To Expunge Lis Pendens And Award
Reasonable Attorney’s Fees (the “Motion”) seeking to expunge the Ocean Property
Lis Pendens, the Elm Property Lis Pendens, the 4th Street No. 3 Property Lis
Pendens, as well as the lis pendens with respect to the 4th Street No. 2
Property recorded on October 21, 2024 as ¿Instrument
Number 20240716159 (hereafter, the “4th Street No. 2 Property Lis Pendens”)
that Plaintiff has not been filed with the Court/
On November 14, 2024, Plaintiff filed
a recorded copy of a Notice of Withdrawal of the 4th Street No. 2 Property Lis
Pendens.
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure
sections 405.30 et seq., Defendant moves to expunge the Ocean Property Lis
Pendens, the Elm Property Lis Pendens, the 4th Street No. 3 Property Lis
Pendens, and the 4th Street No. 2 Property Lis Pendens (collectively, the “Lis
Pendens”) on the grounds that Plaintiff fails to state a real property claim
and cannot meet her burden of proof establishing a probable validity of a real
property claim.
Additionally, Defendant moves for an
award of $4,756.61 in reasonable attorney’s fees and costs.
As an initial matter, the Court finds good cause to
consider Plaintiff’s Opposition even though it was filed two court days late
because, as correctly asserted by Plaintiff, (Opposition, p. 2.) the hearing
was originally scheduled for January 21, 2025 but was advanced to December 11,
2024 on November 21, 2024.
I.
Motion to Expunge Lis Pendens
A. Legal Standards
“‘A lis pendens is a recorded document giving
constructive notice that an action has been filed affecting title to or right
to possession of the real property described in the notice.’” (Kirkeby v. Superior Court (2004) 33
Cal.4th 642, 647 (quoting Urez Corp. v. Superior Court (1987) 190
Cal.App.3d 1141, 1144).) A lis pendens may be filed by any party that asserts a
real property claim to that real property. (Id.) A real property claim
is a cause of action that, if successful, would affect title to or the right of
possession of specific real property or the use of an easement identified in a
pleading. (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.) “Evidence or declarations may
be filed with the motion to expunge the notice. The court may permit evidence
to be received in the form of oral testimony, and may make any orders it deems
just to provide for discovery by any party affected by a motion to expunge the
notice.” (Id.)
“[T]he court shall order the notice expunged if the court
finds that the pleading on which the notice is based does not contain a real
property claim.” (Code Civ. Proc., § 405.31.) “The court shall not order an
undertaking to be given as a condition of expunging the notice where the court
finds the pleading does not contain a real property claim.” (Id.) “‘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.)
“[T]he 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 court shall not order an undertaking to be given as a condition
of expunging the notice if the court finds the claimant has not established the
probable validity of the real property claim.” (Id.) “‘Probable
validity,’ with respect to 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.)
“The claimant shall have the burden of proof under
Sections 405.31 and 405.32.” (Code Civ. Proc., § 405.30.) “‘Claimant’ means a
party to an action who asserts a real property claim and records a notice of
the pendency of the action.” (Code Civ. Proc., § 405.1.)
B. Analysis
Here, Defendant moves to expunge the Lis Pendens on the
grounds that (1) Plaintiff fails to state a real property claim; and (2)
Plaintiff cannot meet her burden of proof establishing a probable validity of a
real property claim. (See Motion, pp. 6-8.)
1. Real Property Claim
Defendant argues that Plaintiff’s original Complaint,
filed on July 30, 2024, fails to state a real property claim, reasoning that Plaintiff’s
original Complaint only refers to real property in Arizona, which the Court
lacks jurisdiction over, and nowhere in Plaintiff’s original Complaint “¿does she reference any real property
in the State of California to which she makes a real property claim.” (Motion
at p. 6.) Additionally, Defendant argues that “Plaintiff’s prayer also lacks
any prayer for relief regarding any specific real property.” (Id.)
As an initial matter, when the instant Motion was filed,
the operative complaint was the original Complaint. However, since no answer,
demurrer, or motion to strike was filed, Plaintiff was permitted to file the
FAC without leave of Court. (Code Civ. Proc., § 472.) Thus, the Court proceeds
to determine whether Plaintiff sustains her burden to show that the FAC contains
a real property claim.
Like the original Complaint, the FAC only refers to real
property in Arizona, which the Court agrees it lacks jurisdiction over, and
nowhere in the FAC are allegations concerning any real property in California,
including the real property subject to the Lis Pendens.
In Opposition, Plaintiff argues that “the overall focus”
of the FAC “is her valid right to the decedent’s real or personal property”
pursuant to a “classic Marvin v. Marvin facts” and “alleges claims for specific
performance of the alleged real property by way of breach of implied and/or
express contract.” (Opposition, p. 6.)
However, for purposes of the instant action, a “real
property claim” as defined by Code of Civil Procedure section 405.4 means “the
cause or causes of action in a pleading which would, if meritorious, affect…
title to, or the right to possession of, specific real property….” (Code Civ.
Proc., § 405.4.)
There are no allegations with respect to any “specific
real property” in California, let alone the properties subject to the Lis
Pendens.
Thus, the Court agrees with Defendant that Plaintiff
fails to sufficiently show that the FAC states a “real property claim” as
defined by Code of Civil Procedure section 405.4.
2. Probable Validity
Even if the Court were to find that the FAC states a real
property claim, the Court finds that Plaintiff cannot sustain her burden
showing probable validity.
Plaintiff’s Opposition fails to set forth any argument or
analysis and is entirety devoid of any legal or factual basis to conclude that
there is probable validity to any real property claim. Rather, Plaintiff’s
Opposition is limited to the argument that the FAC states a real property claim
because the FAC “alleges claims for specific performance of the alleged real
property by way of breach of implied and/or express contract,” (Opposition at
p. 6), which the Court rejects for the reasons discussed above.
In any event, Plaintiff has not provided any evidence
showing “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.)
Notwithstanding the lack of allegations in the FAC with respect to any “specific
real property” in California, Plaintiff has not provided any legal or factual
basis to conclude that it is more likely than not she will obtain a judgment on
her specific performance claim or any other claim asserted in the FAC. (See Real
Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472 (quoting Tamarind
Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575)
(internal citation omitted) [“To obtain specific performance after a breach of
contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal
remedy; (2) an underlying contract that is both reasonable and supported by
adequate consideration; (3) the existence of a mutuality of remedies; (4)
contractual terms which are sufficiently definite to enable the court to know
what it is to enforce; and (5) a substantial similarity of the requested
performance to that promised in the contract.’”].).
For all the foregoing reasons, Defendant’s Motion to
Expunge the Lis Pendens is GRANTED.
II.
Motion for Attorney’s Fees
Code of Civil Procedure section 405.38 provides that
The court shall direct that the party
prevailing on any motion under this chapter 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.
(Code Civ. Proc., § 405.38.)
Here, Defendant is the prevailing party on the Motion.
Given the allegations in the FAC and the lack of evidence and analysis provided
by Plaintiff in opposition to the Motion, the Court does not find that
Plaintiff acted with substantial justification in opposing the Motion or that
other circumstances make the imposition of attorney’s fees and costs unjust.
Thus, the Court awards Defendant reasonable attorney’s
fees and costs.
After consideration of the
declaration of Mark A. Ross, (see Mark A. Ross Decl., ¶ 17), and relying on its own knowledge and
familiarity with the legal market, (569 East County Boulevard LLC v.
Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437), the Court finds that the requested hourly rate of $550.00 per hour is
reasonable.
The Court also finds 5.5
hours to draft the instant Motion is reasonable. (Ross Decl. at ¶ 18.) The
Court also finds as reasonable the 2.0 hours requested to review the Opposition
and draft a reply and the 1.0 requested to prepare for and attend the hearing.
In Opposition, Plaintiff does not challenge Defendant’s request for attorney’s
fees or costs.
Thus, the Court awards
attorney’s fees for 8.5 hours, for a total of $4,675.00 in attorney’s fees.
The Court also awards the
$84.61 requested for costs. (Ross Decl. at ¶ 18.)
Accordingly, the Court
GRANTS Defendant’s request for an award of $4,759.61 in attorney’s fees and
costs.