Judge: Theresa M. Traber, Case: 19STCV12728, Date: 2022-08-26 Tentative Ruling

Case Number: 19STCV12728    Hearing Date: August 26, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 26, 2022                     TRIAL DATE: NOT SET

CASE:                         Ron Hacker v. Henry Levy, et al.

CASE NO.:                 19STCV12728           

MOTION TO EXPUNGE LIS PENDENS

MOVING PARTY:               Defendants Finance of America Commercial LLC and Wilmington Savings Fund Society, FSB, as trustee of Antler Mortgage Trust 2019-RTL1

RESPONDING PARTY(S): Plaintiff Ron Hacker

CASE HISTORY:

• 04/12/19: Complaint filed.
• 04/15/19: Amended notice of lis pendens filed.
• 04/16/19: GNP Enterprise, LLC substituted in as Doe 1; Gabriel Perez substituted in as Doe 2 in a caption purporting to identify Doe 1 only.
• 04/18/19: Finance of America Commercial, LLC purportedly substituted in as Doe 1 in a document with a caption purporting to identify Doe 2.
• 04/23/19: Errata filed indicating that Finance of America Commercial, LLC is substituted in as Doe 3.
• 05/03/19: First Amended Complaint filed.
• 06/07/19: Macoy Capital Partners, Inc. substituted in as Doe 10.
• 06/18/19: Exhibits to First Amended Complaint filed with notice of erratum.
• 08/05/19: Judith Sender substituted in as Doe 11; Mitchell Ohlbaum substituted in as Doe 12.
• 10/07/19: Second Amended Complaint filed.
• 06/01/20: Third Amended Complaint filed.
• 07/01/20: Cross-Complaint filed by Gaelle II LLC.
• 07/20/20: Prestige Default Services substituted in as Doe 13.
• 07/20/20: Walmington [sic] Savings Fund Society, FSB, as trustee of Antler Mortgage Trust 2019-RTL1 substituted in as Doe 14.
• 08/10/20: Anca Claudia Horovitz substituted in as Doe 15.
• 08/10/20: Raffi Tal substituted in as Doe 16.
• 08/10/20: Peak Realty Co aka Century 21 Peak substituted in as Doe 17.
• 08/28/20: Dismissal entered as to Anca Claudia Horovitz (Doe 15).
• 09/01/20: Dismissal entered as to Peak Realty Co aka Century 21 Peak (Doe 17).
• 09/24/20: Dismissal entered as to Cross-Complaint by Gaelle II, et al.
• 11/03/21: Judgment entered as to Defendant Adam Rossman.
• 12/13/21: Dismissal entered as to Defendant GNP Enterprise, LLC.
• 12/15/21: Dismissal entered as to Defendant Adam Rossman.
• 12/23/21: Default entered as to Prestige Default Services
• 12/30/21 Judgment entered as to Defendants Henri Levy, 4865 Bakman, LLC, and Gabriel Perez

• 03/14/22: Action stayed pending appeal.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Plaintiff alleges that he entered into a joint venture to purchase real property with Defendant Henri Levy, which they planned to resell for a profit. Plaintiff alleges that Levy and others clouded title to the property after Levy and Plaintiff purchased it, undermining Plaintiff’s ability to sell it for a profit.

Defendants Finance of America Commercial LLC and Wilmington Savings Fund Society, FSB, as trustee of Antler Mortgage Trust 2019-RTL1 move to expunge Plaintiff’s four lis pendens recorded against the property at 4865 Bakman Avenue, North Hollywood, CA 91601 (“Property”).

TENTATIVE RULING:

Defendants’ motion to expunge lis pendens is GRANTED.  The Court also grants Defendants’ request for $3,960.50 in attorneys’ fees under Code of Civil Procedure §405.38 and orders Plaintiff to seek leave of court before recording any new lis pendens against the Property.

DISCUSSION:

Defendants Finance of America Commercial LLC and Wilmington Savings Fund Society, FSB, as trustee of Antler Mortgage Trust 2019-RTL1 move to expunge Plaintiff’s four lis pendens. 

A lis pendens is a recorded document that gives constructive notice that an action affecting title or right to possession of real property has been filed and may be filed by any party that asserts a real property claim to that real property. (Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 647.) A person with an interest in the affected real property can petition the court to expunge the lis pendens. (Code Civ. Proc. § 405.30.) The court must order the lis pendens expunged if it finds that (a) there is no real property claim, (b) the claimant did not establish by a preponderance of the evidence the probable validity of the real property claim, or (c) adequate relief can be secured by giving an undertaking. (Code Civ. Proc. §§ 405.31- 405.33.) A real property claim is a cause of action that, if successful, would affect title to or the right of possession of specific real property or the use of an easement identified in a pleading.  (Code Civ. Proc. § 405.4.) 

On March 15, 2022, this Court stayed the entire action pending resolution of Plaintiff’s two pending appeals of the Court’s order granting two separate motions for summary judgment against Plaintiff. Code of Civil Procedure section 916’s automatic stay provision following perfecting of a notice of appeal does not apply to a case that has been used to support a lis pendens. (Mix v. Superior Court (2004) 124 Cal.App.4th 987, fn. 8 [“if a stay were automatic, it would completely circumvent the legislature’s intent in enacting section 405.32, because merely filing an appeal, no matter how meritless, would automatically keep the lis pendens in place”].) The law is silent as to the effect of a stay voluntarily imposed by the trial court, although the Mix court stated in dicta that the proper mechanism to stay expungement of a lis pendens is to request a stay accompanying a petition for review under California Rule of Court 8.486. (Mix, supra, 124 Cal.App.4th at 996-97.)

Here, the Court did not impose an automatic stay pursuant to section 916, but instead voluntarily exercised its discretionary authority to stay the entire action pending appeal. However, the Court did so in service of the same goal as section 916: to preserve the status quo ante until the appeals are resolved. (See, e.g., Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198.). Therefore, the same reasoning that creates an exception to the automatic stay provision in section 916, as described by the Mix court, applies to the stay in this case. The Court therefore finds that it would be within its discretion to hear the Motion to Expunge Lis Pendens despite the stay.

In his opposition to the motion, Plaintiff alleged that Defendant GNP Enterprise, LLC, who is not one of the moving defendants, has an interest in the subject property that is currently affected by the lis pendens. GNP was dismissed from this action on December 13, 2021, but Plaintiff has moved to set aside that dismissal on the ground that the dismissal was entered in error. That motion had been continued, pursuant to the stay, to January 11, 2023.

At the July 19, 2022 hearing on the motion, the Court permitted Plaintiff to submit a supplemental opposition supporting his contention that the lis pendens should be remain in place to protect his claims against GNP and also allowed Defendants to file a supplemental reply.  The Court also rescheduled this motion and Plaintiff’s motion to set aside the dismissal of GNP to be heard on the same time at the hearing set for today.  For reasons not explained by Plaintiff, he decided to continue his motion to set aside to be heard separately on September 20, 2022.  The Court has received and considered the supplemental opposition and reply papers but will not consider Plaintiff’s additional filings submitted after the supplemental reply.

As noted above and in Defendants’ moving papers, a party opposing a motion to expunge a lis pendens has the burden of proving all of the following elements.  First, it must be shown that action affects title to or right of possession of the real property at issue.  (Code Civ. Proc. § 405.4.)  Second, the proponent of the lis pendens must submit admissible evidence to demonstrate by a preponderance of the evidence the probable validity of the real property claim.  Third, the party opposing an expungement must provide that adequate relief cannot be secured by giving an undertaking. (Code Civ. Proc. §§ 405.31- 405.33.)  Plaintiff has plainly not satisfied his burden either as to the moving Defendants or as to GNP.  Accordingly, the Court grants the motion to expunge, awards Defendants attorneys’ fees in the amount of $3,969.50 under Code of Civil Procedure § 405.38, and directs Plaintiff to seek court approval before recording any new lis pendens against the property at 4865 Bakman Avenue, North Hollywood, CA 91601.

CONCLUSION:

For the reasons above, Defendants’ motion to expunge lis pendens is GRANTED.  The Court also grants Defendants’ request for $3,960.50 in attorneys’ fees under Code of Civil Procedure §405.38 and orders Plaintiff to seek leave of court before recording any new lis pendens against the Property.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 26, 2022                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court