Judge: Stephen P. Pfahler, Case: PC058000, Date: 2023-04-18 Tentative Ruling

Case Number: PC058000    Hearing Date: April 18, 2023    Dept: F49

Dept. F-49

Date: 04/18/23

Case # PC058000

MOTION TO EXPUNGE LIS PENDENS

Moving Party: Specially Appearing Defendant Breckenridge Property Fund 2016, LLC

Opposing Party: Plaintiffs Mylene Lopez-Farooq and Ibrahim Farooq

Summary of Action

On September 25, 2017, Plaintiff Mylene Lopez-Farooq (“Mylene”) filed a complaint against Defendants Bank of America N.A. (“Bank of America”), Ditech Financial, LLC f/k/a Green Tree Servicing, LLC (“Ditech”), and Clear Recon Corp. (“Clear Recon”) alleging causes of action for: (1) violation of Civil Code § 2923.55; (2) violation of Civil Code § 2923.6; (3) violation of Civil Code § 2923.7; (4) violation of Civil Code § 2924.12; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; (9) unfair business practices.¿¿¿

On May 24, 2018, the court sustained Bank of America’s demurrer without leave to amend as to the First through Fourth Causes of Action.¿ As the demurrer was sustained without leave to amend as to Bank of America, Judgment was entered in favor of Bank of America, and against Mylene, on July 19, 2018.¿¿¿

On November 26, 2018, Mylene, self-represented, filed the First Amended Complaint (“FAC”) for (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; and (9) unfair business practices.¿

On February 18, 2022, Mylene filed a second amended complaint (the “SAC”), added a new Plaintiff Ibrahim Farooq (“Ibrahim”), and asserted nineteen causes of action against several defendants including Bank of America, Bank of America Corp. and newly added defendants BAC Home Loans Servicing, LP fka Countywide Home Loans Servicing LP, ReconTrust Company, N.A., , Countywide Home Loans, Inc., and Mortgage Electronic Registration Services, Inc (sued as “MERS, Inc.”), and JT Legal Group. Thereafter, Mylene substituted multiple Defendants for Does.  The Court thereafter granted several motions to quash service of summons.

On March 29, 2023, the Court dismissed this action, with prejudice, because Plaintiffs failed to timely prosecute this matter in accordance with Code of Civil Procedure sections 583.310, 583.360(a), and 583.420(2)(A).

Specially Appearing Defendant Breckenridge Property Fund 2016, LLC (“SAD”) moves the Court to expunge the lis pendens recorded as to the real property located at 18503 Olympian Court, Canyon Country, CA 91351 (the “Property”).  On June 20, 2018 Mylene recorded the lis pendens against the Property.  (SAD RJN, Exh. 9.)  On May 2, 2022, Ibrahim filed a Notice of Pendency of Action (lis pendens) with the Court.  (SAD RJN, Exh. 10.)

Ruling:  Granted

Legal Standard

 A¿lis¿pendens¿is a¿recorded instrument¿(“Notice of Pending Action”), recorded in the office of the county recorder where land is located, that gives¿constructive notice¿of a pending lawsuit affecting title to described real property.¿ (Gale v. Superior Court¿(2004) 122 Cal.App.4th 1388, 1395.)¿¿ 

¿ 

“A party to an action who asserts a¿real property claim¿may record a notice of pendency of action in which that real property claim is alleged.”¿ (CCP § 405.20.)¿¿Anyone having an interest in the property affected by a¿lis¿pendens, whether or not a party to the pending lawsuit, may move to expunge the¿lis¿pendens any time after it is recorded.¿ (CCP § 405.30.)¿¿A¿lis¿pendens may be expunged on any of the following grounds: (1) defects in the statutory service and filing requirements; (2) the complaint does not contain a real property claim; (3) the claimant cannot prove the probable validity of the real property claim by a preponderance of the evidence; and (4) “adequate relief” can be “secured to the claimant by the giving of an undertaking.”¿ (CCP §§¿405.23, 405.31, 405.32, 405.33;¿McKnight v. Sup.Ct. (Faber)¿(1985) 170 Cal.App.3d 291, 303 [recognizing defective servicing and filing requirements as grounds for¿expungement].)¿¿The motion may be made even while an appeal is pending.¿(Peery v. Superior Court¿(1981) 29 Cal.3d 837, 842.)¿¿ 

Ibrahim and Mylene’s Lis Pendens

As a preliminary matter, the Court already denied the lis pendens filed by Ibrahim on May 13, 2022.  In a minute order issued on May 2, 2022  the Court expressly stated “The [C]ourt declines to approve the proposed Notice of Pendency of Action filed by the [Ibrahim] on May 2, 2022 on the grounds that the Court finds that this action does not assert a well-plead real property claim.”  Accordingly, the motion to expunge the lis pendens filed by Ibrahim is moot, as the Court had specifically denied the lis pendens. To the extent Ibrahim recorded the lis pendens, the Court orders it expunged.

In addition, both Ibrahim and Mylene no longer have a real property claim over the Property.

A¿“real property claim”¿is any cause of action which, if meritorious, would affect title to, or the right of possession of, specific real property; or the use of an easement identified in the pleading (other than one obtained pursuant to statute by ay regulatory public utility).¿¿(Code of Civ. Proc § 405.4.)¿¿The allegations of the complaint determine whether a “real property claim” is involved; no evidence is required.  (See¿Urez¿Corp. v. Sup.Ct. (Keefer)¿(1987) 190 Cal.App.3d 1141, 1149.)¿ 

As set forth above, Plaintiffs SAC was dismissed with prejudice, and there are no longer any causes of action affecting title to the Property.  The purpose of a lis pendens is to give “constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice.”  (BGJ Association, LLC v. Superior Court (1999) 75 Cal.App.4th 952, 966.)  Since the action has been dismissed, with prejudice, there is no action affecting title or right to possession of Property.  As a result, the lis pendens filed and/or recorded by Plaintiffs are moot.

The Court notes that Plaintiffs contend in opposition that SAD needed leave of the Court to file the instant Motion because they are not a party to the action; however, Plaintiffs are mistaken.  On August 4, 2022, Plaintiffs substituted in SAD as Doe 1.  While SAD did not answer the SAC, SAD specially appeared and filed the instant Motion on September 28, 2022.  SAD was ultimately dismissed on November 4, 2022.  However, since SAD filed this Motion prior to being dismissed, SAD did not need to seek leave of the Court to file the Motion, and the lis pendens filed/recorded by Plaintiffs directly affects SAD’s rights as the current owner of the Property.  (SAD RJN Exh. 8.)  In addition, Plaintiffs incorrectly contend that there is a meet and confer requirement for a motion to expunge lis pendens.  The remainder of Plaintiffs’ arguments relate to the merits of the motions.  Specifically, Plaintiffs contend they pled a real property claim, and that they met their burden of showing a probable validity as to their claims.  However, as discussed above, Plaintiffs SAC has been dismissed, with prejudice, and there is no action affecting title or right to possession of Property.  As a result, the lis pendens filed and/or recorded by Plaintiffs are moot.  The Court further notes that Plaintiffs spend time arguing that SAD’s exhibits submitted in support of the Motion are falsified or forged, but Plaintiffs arguments/contentions are unsupported, and Plaintiffs fail to provide any evidence to show the exhibits provided by SAD were falsified or forged, and Ibrahim’s self-serving declaration, without any exhibits in support to show that the evidence proffered by SAD was falsified or forged, and which is not signed under penalty of perjury (Code Civ. Proc., 2015.5), falls short of establishing that the evidence proffered by SAD was falsified or forged.

Thus, SAD’s Motion to Expunge Lis Pendens is GRANTED.

Attorney’s Fees  

Code of Civil Procedure section 405.38 provides “[t]he¿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.)¿ 

SAD represents that it incurred $1,810 in attorney’s fees and costs as a result of this Motion.  (Burton Decl., ¶ 8.).  The attorney’s fees sought included anticipated fees and costs for reviewing the opposition, preparing a reply, and appearing at the hearing.  (Id.) 

The Court finds that attorney’s fees and costs are appropriate based on the ruling above in the reduced amount of $500.

Thus, Plaintiffs are ordered to pay SAD $500 in attorney’s fees and costs.    

Conclusion

Specially Appearing Defendant Breckenridge Property Fund 2016, LLC’s Motion to Expunge Lis Pendens is GRANTED.  Plaintiffs Mylene Lopez-Farooq and Ibrahim Farooq are ordered to pay Specially Appearing Defendant Breckenridge Property Fund 2016, LLC $500 in attorney’s fees and costs.    

Specially Appearing Defendant Breckenridge Property Fund 2016, LLC to Give Notice.