Judge Theresa M. Traber, Case Number: BC597883, Date: 2023-10-30 Tentative Ruling

Judge: Theresa M. Traber, Case: BC597883, Date: 2023-10-30 Tentative Ruling

Case Number: BC597883 Hearing Date: October 30, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 30, 2023 JUDGMENT: June 21, 2023

CASE: Paul Krzemuski, Trustee of the Violette Krzemuski aka Violette Adamian 2013 Family Trust v. George Zakharia, et al.

CASE NO.: BC597883

MOTION TO EXPUNGE LIS PENDENS

MOVING PARTY: Plaintiff/Cross-Defendant Paul Krzemuski, Trustee of the Violet Krzemuski, aka Violette Adamian 2013 Family Trust

RESPONDING PARTY(S): Defendants/Cross-Complainants George Zakharia and Hoda Zakharia

CASE HISTORY:

· 10/14/15: Complaint filed.

· 11/16/15: Cross-Complaint filed.

· 04/23/18: Compulsory Cross-Complaint filed.

· 06/07/18: First Amended Cross-Complaint filed.

· 06/21/23: Judgment entered for Plaintiff and against Defendants.

· 08/18/23: Amended Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action to quiet title by adverse possession.

Plaintiff/Cross-Defendant Paul Krzemuski moves to expunge a notice of lis pendens recorded against the subject property.

TENTATIVE RULING:

Plaintiff/Cross-Defendant’s Motion to Expunge Lis Pendens is GRANTED.

Plaintiff’s request for attorney’s fees and costs is DENIED.

DISCUSSION:

Plaintiff/Cross-Defendant Paul Krzemuski moves to expunge a notice of lis pendens recorded against the subject property.

Legal Standard for Expungement of 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.) “[O]n a motion to expunge a lis pendens after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not that the appellate court will reverse the judgment.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.)

Defendants’ Evidentiary Objections

Defendants raise evidentiary objections to the Declarations of Paul Krzemuski and Daniel Rinsch in support of the motion. As none of the evidence to which Defendants object is material to the Court’s ruling, the Court declines to rule on these objections.

Requests for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) a Notice of Pending Action recorded December 29, 2014, Instrument No. 20151633728; (2) the May 17, 2023 Minute Order in this action; (3) the May 17, 2023 Ruling on Matter Taken Under Submission in this action; (4) the Judgment entered June 21, 2023 in this action; and (5) the Amended Judgment entered August 18, 2023 in this action. Plaintiff’s requests are GRANTED pursuant to Evidence Code sections 452(c) (official acts) and (d) (court records).

Defendants request that the Court take judicial notice of a Permit and Inspection Report for a property at 1817 Rial Lane from the Los Angeles Department of Building and Safety. As this evidence is not material to the Court’s ruling, Defendants’ request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Expungement of Lis Pendens

Plaintiff seeks expungement of a lis pendens recorded against the property that is the subject of this dispute following the Court’s entry of judgment.

Defendants and Cross-Complainants George and Hoda Zakharia filed a Cross-Complaint alleging claims for quiet title and slander of title against Plaintiff on November 16, 2015. (Cross-Complaint.) Defendants then recorded a Notice of Pending Action on the subject property on December 29, 2015. (RJN Exh. A.) Plaintiff filed a compulsory cross-complaint against Defendants asserting causes of action for declaratory relief, quiet title, and imposition and foreclosure of an equitable lien on June 7, 2018. (Compulsory Cross-Complaint.)

On May 17, 2023, this Court granted a renewed motion for summary judgment by Plaintiff/Cross-Defendant on both Plaintiff’s quiet title claim and on Defendants’ Cross-Complaint in its entirety. (RJN Exh. C.) Judgment was entered pursuant to this ruling and on stipulation of the parties on June 21, 2023, awarding Plaintiff possession of the property against which the Notice of Pending Action was recorded. (RJN Exh. D.) Defendants filed a Notice of Appeal from that judgment on August 14, 2023. (Notice of Appeal.) Four days later, the Court entered an amended judgment awarding Plaintiff fees and costs in the amount of $131,400. (RJN Exh. E.)

Based on the Court’s ruling on the summary judgment motion and subsequent entry of judgment, Plaintiff moves for an order expunging the lis pendens recorded against the subject property.

Defendants oppose, first arguing that the Court erred in accepting cancelled checks and bank statements as admissible non-hearsay evidence, upon which it relied to find that Plaintiff paid property taxes on the subject property, because they were not properly authenticated business records under Evidence Code section 1271. The Court declined to exclude this evidence, overruling Defendants’ hearsay objections asserted in connection with the summary judgment motion.

A writing is subject to the business records exception and is not inadmissible hearsay if (a) it was made in the regular course of business; (b) at or near the time of the act, condition or event; (c) a custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code § 1271.) The Court has broad discretion in admitting business records under this statute. (See, e.g., People v. Dorsey (1974) 43 Cal.App.3d 953, 961.) In fact, the Court may find that the criteria for application of the business records exception may be inferred from the circumstances. (Id.) “Indeed, it is presumed in the preparation of the records not only that the regular course of business is followed but that the books and papers of the business truly reflect the facts set forth in the records brought to court.” (Id.) Plaintiff offered bank statements and cancelled checks maintained by his parents dating back three decades and testified to their origin. (See, e.g., Plaintiff’s Compendium of Evidence ISO Renewed Mot. Exhs. 55, 57.) In contrast, Defendants offered no evidence challenging the contention that Violet Adamian, and not they, paid property taxes. (See RJN Exh. C pp. 14-15.) Nor did they suggest any basis to doubt the authenticity of the documents, nor any reason to presume that Plaintiff was not qualified to speak to the preparation of the records made by his parents over many years. The Court is therefore not persuaded by this line of argument.

Defendants’ next argument is a conclusory assertion that Plaintiff did not prove actual possession, open and notorious possession, or continuous physical occupation of the property because Violet Adamian did not physically occupy the property. To the contrary, Plaintiff offered considerable evidence of precisely that. (See RJN Exh. C. p. 13.) Defendants, by contrast, offered nothing to rebut that contention. Defendants still offer nothing to rebut that contention. The Court therefore finds this argument likewise to be without merit.

In the alternative, Defendants argue that the Court should deny the motion to preserve the status quo ante pending appeal. This contention is contrary to binding precedent that the motion must be granted unless the Court finds there is a probability that the judgment will be reversed on appeal. (Amalgamated Bank v. Superior Court supra, 149 Cal.App.4th at 1015.) For the reasons stated above, the Court does not find a probability of reversal on appeal. Plaintiff is therefore entitled to an order expunging the lis pendens.

Attorney’s Fees

Plaintiff also requests an award of attorney’s fees against Defendants in the amount of $20,310.

Code of Civil Procedure section 405.38 provides that the Court “shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.” (Code Civ. Proc. § 405.38.)

The Court observes two issues with Plaintiff’s fee request which it finds render the imposition of attorney’s fees and costs unjust. First, and of greatest significance, Plaintiff did not include a request for fees in his notice of motion, nor were the applicable statutes identified. In fact, the first time that an award of attorney’s fees is mentioned in the moving papers is at the very bottom of the 10th page of a 12-page motion. (Memo of Ps. & As. p.10:27.) Moreover, Plaintiff’s fee request is based on an inflated 34 hours of attorney time plus an additional 8 hours anticipated to be incurred by Attorney Lawrence J. Poteet at a rate of $425 per hour (Declaration of Lawrence J. Poteet ISO Mot. ¶ 7), plus an additional 6 hours incurred by Attorney Robert Shtofman at $700 per hour (Declaration of Robert Scott Shtofman ISO Mot. ¶¶ 4-5), plus $60 in filing fees. (Poteet Decl. ¶ 7.) Plaintiff’s fee request is unreasonably inflated on its face, and the Court has the power to deny unreasonably inflated fee requests outright. (Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970, 989-991.) For these reasons, the Court finds that the imposition of attorney’s fees and costs against Defendants would be unjust, and therefore declines to award attorney’s fees.

CONCLUSION:

Accordingly, Plaintiff/Cross-Defendant’s Motion to Expunge Lis Pendens is GRANTED.

Plaintiff’s request for attorney’s fees and costs is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 30, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.