Judge: Theodore R. Howard, Case: 22-1245908, Date: 2022-09-15 Tentative Ruling

The unopposed Motion to Expunge Lis Pendens, etc. filed on 7/14/22 by defendants Martin Serrato and Sinthia Serrato is GRANTED IN PART. 

A lis pendens must be expunged if: (1) the complaint does not contain a “real property claim”; or (2) plaintiff cannot establish its “probable validity” by a “preponderance of the evidence.” (C.C.P. §§ 405.31 and 405.32.)  The Motion fails to show that the former requirement is met, as the First Amended Complaint plainly seeks an order for judicial foreclosure, and thus asserts a real property claim.

On the second prong, ROA 10 shows what appears to be timely notice, the FAC at ¶ 1 now alleges standing, and MPs concede in the Motion that they have failed to make a number of  promised payments. But the burden of proof on the probability of prevailing requirement is on the plaintiff here. (C.C.P. § 405.32 [“In proceedings under this chapter, 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.”].)  As no opposition has been filed, Plaintiff has not met that burden, so the motion to expunge the lis pendens must be GRANTED. 

However, the corresponding fee request is DENIED.  Under the circumstances here, the Court finds that the imposition of attorney's fees and costs on the Plaintiff would be unjust.

Counsel for Defendants is to give notice of this ruling.