Judge: Thomas D. Long, Case: 22LBCV01037, Date: 2023-10-12 Tentative Ruling

Case Number: 22LBCV01037    Hearing Date: October 12, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On December 21, 2022, Plaintiff  Casamigos Capital LLC filed this action against Defendant Brian K. Wildasinn and others, alleging (1) breach of contract; (2) breach of contract; (3) breach of covenant of good faith and fair dealing; (4) breach of covenant of good faith and fair dealing; (5) breach of fiduciary duty; (6) unfair business practices (erroneously titled Fifth Cause of Action); and (7) declaratory relief (erroneously titled Sixth Cause of Action).

On January 4, 2023, Plaintiff recorded a Notice of Lis Pendens for the property commonly known as 126-128-130-132 Orange Ave, Long Beach, CA 90802.  Plaintiff has not filed a copy with the Court.

On September 14, 2023, Defendant filed a motion for order expunging the lis pendens.  The request for judicial notice is granted.

When a party asserts a real property claim, that party may record a notice of pendency of action in the office of the county recorder.  (Code Civ. Proc., § 405.20.)  Before recording the notice, the claimant must mail a copy to all parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim.  (Code Civ. Proc., § 405.22.)  Immediately after recording the notice, a copy of the notice shall be filed with the court.  (Ibid.)  If these requirements are not met and if a proof of service is not recorded with the notice of pendency of action, the notice is void and invalid.  (Code Civ. Proc., § 405.23.)  After the notice of pendency of action is recorded, a party or nonparty with an interest in the property may apply to expunge the notice.  (Code Civ. Proc., § 405.30.)  The Court must order the notice expunged if the pleading on which the notice is based does not contain a real property claim or if the claimant has not established the probable validity of the real property claim.  (Code Civ. Proc., §§ 405.31, 405.32.)

Defendant argues that the Complaint does not state a real property claim.  (Motion at pp. 7-8.)  “‘Real property claim’ means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”  (Code Civ. Proc., § 405.4.)  This does not include an action that merely relates to real property and does not affect title or possession of real property.  (See Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 133-134.)

The Complaint’s first, third, fifth, and sixth causes of action involve Defendant’s alleged breach of a Purchase Agreement and refusal to allow the closing of escrow int her sale of the property to Plaintiff.  For the first six causes of action, Plaintiff has been damaged in the form of lost rental income from the property, and he seeks “general, incidental, and consequential damages.”  (Complaint ¶ 17; Complaint at p. 8.)  (The second and fourth causes of action are not brought against this Defendant.)  These allegations relate to the real property, but they do not directly affect title or possession of the real property.  An action for money damages does not support a lis pendens.  (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1381.)  The seventh cause of action seeks declaratory relief because “[a]n actual and justiciable controversy has arisen as to the legal rights and duties of the parties.  Namely the right to purchase the Property.”  (Complaint ¶ 44.)  Plaintiff alleges that “[a] judicial declaration is necessary and appropriate at this time so that the parties’ rights and duties may be ascertained.”  (Complaint ¶ 45.)  There is no direct request for specific performance of the contract and no demand that Defendant complete the sale of the property to Plaintiff.  In the context of the Complaint’s other causes of action, this does not clearly affect title or possession of real property.

Defendant also argues that Plaintiff did not comply with procedural requirements.  (Motion at pp. 8-9.)  “[A] party alleging a lis pendens is ‘void and invalid’ (§ 405.23) for defective service may move for expungement on that basis.”  (Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263.)  Before recording a notice of lis pendens, the claimant must mail, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim.  (Code Civ. Proc., § 405.22.)  “Immediately following recordation,” a copy of the notice must be filed with the court.  (Ibid.)

Defendant never received a copy of the lis pendens from Plaintiff, Plaintiff’s counsel, or anyone else acting on behalf of Plaintiff.  (B. Wildasinn Decl. ¶ 6; Edlinger Decl. ¶ 3.)  Additionally, the notice of lis pendens was not filed with the Court.

Accordingly, the unopposed motion for order to expunge lis pendens is GRANTED.

Defendant’s request for attorney fees is granted in part.  (Code Civ. Proc., § 405.38.)  Plaintiff’s counsel is ordered to pay $4,460.00 to Defendant within 30 days ($3,150 plus $650 plus $600 plus $60 filing fee).  (See Edlinger Decl. ¶¶ 4-8.)

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 12th day of October 2023