Judge: Theodore R. Howard, Case: 22-1245908, Date: 2022-09-29 Tentative Ruling

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

As a preliminary matter, under Hansen v Hansen (2003) 114 C.A.4th 618, 621-622, the First Amended Complaint filed in this action by Mr. Rodriguez on 7/13/22, in propria persona, must be and hereby is STRICKEN.  However, as Plaintiff is now represented by counsel, per a substitution filed on 9/21/22, the Court grants Plaintiff 20 days leave to amend.

As for the lis pendens, the Motion to Expunge 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.)  Here, the Motion fails to show that the former requirement is met, as both the original Complaint and the FAC seek judicial foreclosure, so even though the FAC must be stricken, the action clearly presents a real property claim. But on the second prong, the burden of proof on the probability of prevailing requirement is on the plaintiff.  (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.”]).  Since the FAC is to be stricken, the Complaint fails to show standing to act on behalf of the Estate, and there were defects in the notice for the lis pendens at issue, Plaintiff has not met that burden here. The lis pendens must therefore be expunged. 

However, the corresponding fee request is DENIED.  It is conceded here that moving parties have failed to pay an undisputed debt on the subject property for more than a year, even though the sole explanation offered for that failure was eliminated when Plaintiff was appointed as Administrator.  Under these circumstances, the Court finds that the imposition of attorney's fees and costs on the Plaintiff would be unjust.

Counsel for Defendants to give notice.