Judge: Theodore R. Howard, Case: 22-1276645, Date: 2022-10-27 Tentative Ruling

The “Motion of Defendant and Cross-Complainant Cascade Development Company, LLC to Expunge Notices of Pendency of Action (Lis Pendens), etc.” which was filed on 10/17/22, and then set for an expedited hearing per this Court’s Order of 10/19/22, 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 Complaint fails to assert a real property claim sufficient to support a lis pendens for any of the properties at issue.  The first four causes of action are clearly for money damages. Although the last two assert claims for an equitable lien and for injunctive relief, neither is sufficient to state a “real property claim” for purposes of the lis pendens statute. Where the claim is not dependent upon the uniqueness of the property and a money judgment could fully compensate the plaintiff, it does not support a lis pendens. (Campbell v. Sup. Court (2005) 132 Cal.App.4th 904, 912, 917; Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1860 [claims for fraud and conversion and constructive trust insufficient as “courts have repeatedly held that a lis pendens recorded in an action that does not involve title has no effect.”].)  The first prong is thus not met here.

Nor has Plaintiff here presented any evidence to show probable validity.  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.”]).

Plaintiff’s tardy opposition failed to submit any evidence whatsoever to meet that burden.

The lis pendens must therefore be expunged for each of the properties identified in the Motion.  

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

Defendants’ Request for Judicial Notice is GRANTED under Ev. Code § 452(c) and (d) as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Counsel for Defendants to give notice.