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

The Motion to Expunge Lis Pendens, etc. filed on 7/14/22 by defendants Martin Serrato and Sinthia Serrato.  Opposing this motion Is Louis A. Rodriguez who initially filed this action on 2/17/22 asserting claims for breach of contract and “For Judgment Establishing and Foreclosing Vendor’s Lien.”

The thrust of the claim is that Plaintiff’s father (“Decedent”) died on 6/6/21. Prior to that death, Decedent sold real property to defendants Camacho and Ortiz, for $414K, with $50K down and the $364K balance payable over 30 years at 6.5% for monthly payments of $2300.18. Defendants defaulted on 10/1/21 and despite demand, have not made the required payments. COA 1 is for breach of contract re same; COA 2 seeks judicial foreclosure.  Plaintiff says therein that his sister and his Dad’s widow have assigned their interests to Plaintiff to pursue in this action. Per the exhibits to the Complaint, the sale is evidenced by a “bill of Sale, Note Secured by Real Property” – but evidently, no Deed of Trust.

On 4/26/22, a Notice of Related Case was filed, showing a related case entitled “Estate of Louis H. Rodriguez” OCSC Case No. 22-01253830, pending in Dept. C-08, filed 4/8/22.  Per the attachment thereto, the probate action is based on the same claim. It says the note is unsecured so without a lis pendens, it could be valueless, and that Plaintiff is seeking to be appointed as administrator for the estate and wants to consolidate the two cases. Per a 5/5/22 MO, the two cases are not being deemed related.

On 7/13/22, Plaintiff filed a FAC saying that as of 6/22/22, he is the duly appointed personal representative for his father’s estate, asserting claims for Breach of Contract and “For Judgment Establishing and Foreclosing Mortgage, or alternatively, Vendor’s Lien.” In doing this Mr. Rodriguez is seeking to represent his father’s estate as a non-lawyer.  Based on a case from our own DCA, Hansen v. Hansen (2003) 114 C.A.4^th 618, 621-622, such an attempt is fatal to his effort. A non-attorney may not maintain such an action. Relying on Estate of Downey v. Johnson (1968) 263 C.A.2d 775, the DCA held that “the trial court should have stricken the complaint (presumably on its own motion) on the grounds that the plaintiff was purporting to act for an estate in propia persona (and was not an attorney herself). Id at 622. Whether the court strikes the operative complaint on its own motion or not, this is a hurdle Plaintiff cannot clear in the context of the instant motion.”  Accordingly the tentative is to STRIKE THE COMPLAINT WITHOUT PREJUDICE and EXPUNGE the Lis Pendens.