Judge Timothy B. Taylor, Case 37-2022-00046768-CU-BC-CTL 2023-09-29 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2022-00046768-CU-BC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00046768-CU-BC-CTL HERBELIN VS RITTER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Expunge Lis Pendens, 09/01/2023

Tentative Ruling on Motion to Expunge Lis Pendens Herbelin v. Ritter, Case No. 2022-46768 Related cases: Ritter v. 2421 State Street LLC, Case No. 2022-21356; Ritter v. Herbelin, Case No.

2022-51881 Sept. 29, 2023, 1:30 p.m., Dept 72 1. Overview and Procedural Posture.

These three eponymous cases all arise from the same basic dispute regarding the right to possess certain real estate located near Interstate 5 on the edge of the 'Little Italy' section of downtown San Diego. The first-filed case (-21356) first came to the court's attention on Oct. 25, 2022, for a hearing on four claims of right to possession conducted under CCP section 1174.3. That hearing came following entry of a default judgment as to the only named defendant (2421 State Street LLC). The first filed case was filed as a commercial UD case, and the original use of the premises was indeed commercial in nature.

The court incorporates the minutes for May 26, 2023 in Case No. 2022-46768 for further background.

On that day, the court sustained a demurrer to the FAC without leave to amend. ROA 79. A judgment of dismissal was thereafter entered. ROA 81.

The court also incorporates the decision of June 20, 2023 in Ritter v. 2421 State Street LLC, Case No.

2022-21356 and Ritter v. Herbelin, Case No. 2022-51881, for further background.

Presently, in Case No. 2022-46768, Ritter moves to expunge a lis pendens heretofore recorded by Herbelin. ROA 86, 88-92. He also seeks nearly $20,000 in attorneys' fees. There is no opposition.

2. Applicable Standards.

A. A lis pendens is a recorded instrument, recorded in the office of the county recorder where the land is located, that gives constructive notice of a pending lawsuit affecting title to described real property. The pleading in the lawsuit to which the lis pendens refers must describe a specific parcel of real property.

Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1395. A motion to expunge a lis pendens may be Calendar No.: Event ID: TENTATIVE RULINGS

2994049 39 CASE NUMBER: CASE TITLE: HERBELIN VS RITTER [IMAGED] 37-2022-00046768-CU-BC-CTL filed at any time after the lis pendens is recorded. Code Civ. Proc. § 405.30.

B. Unlike other motions, the burden of proof is on the party opposing a motion to expunge a lis pendens. Id. The lis pendens claimant bears the burden of establishing the existence of a 'real property claim' and that it is 'probably valid' by a preponderance of the evidence. Code Civ. Proc. § 405.32. A 'real property claim' is any cause of action which, if meritorious, would affect title to or the right to possession of specific real property. Code Civ. Proc. § 405.4. 'Probable validity' means that it is 'more likely than not that the claimant will obtain a judgment against the defendant on the claim.' Code Civ.

Proc. § 405.3. '[A] plaintiff may rely on a verified complaint to oppose a motion to expunge a lis pendens.' Coppinger v. Superior Court (1982) 134 Cal.App.3d 883, 889. The court may not order the defendant to post an undertaking before expunging an improper lis pendens. Code Civ. Proc. §§ 405.31, 405.32.

C. 'Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees.' Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751. Code of Civil Procedure section 1021 codifies the rule, providing that the measure and mode of attorney compensation is left to the agreement of the parties '[e]xcept as attorney's fees are specifically provided for by statute.' One such statute is Code of Civil Procedure section 405.38, which requires a court to award 'reasonable attorney's fees' to a prevailing party on a motion to expunge a lis pendens, unless the other party acted with substantial justification or other circumstances would make the imposition of fees unjust.

D. The court has well in mind that Herbelin is now unrepresented. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. 'A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.' Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574. '[T]here are no special exemptions from the California Rules of Court or California Code of Civil Procedure for litigants in propria persona.' People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.

3. Discussion and Rulings.

A. The unopposed motion to expunge is granted. The court deems the lack of opposition to the motion to be a concession as to the merits of the motion. SDSC Local Rule 2.1.19(B). Moreover, by failing to oppose the motion, Herbelin has not met his burden of establishing the probable validity of his real property claims. Code Civ. Proc. §§ 405.30, 405.32. Accordingly, the lis pendens recorded on November 28, 2022 is hereby expunged. Continued maintenance of the lis pendens, after the court dismissed the action and no notice of appeal was filed, is a bad faith cloud on title.

B. Ritter's request for attorneys' fees is granted in the reduced amount of $3,839.50. Code of Civil Procedure section 405.38 provides as follows: '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.' Here, a review of the billing entries shows that Ritter's counsel is seeking fees for matters unrelated to the making of the motion to expunge the lis pendens. (See Kelly Decl., Ex. B.) Ritter has not cited any authority holding that time spent attacking a pleading may be included in an award of fees under section 405.38. The court therefore finds that a reasonable and proper amount of attorneys' fees to be awarded in connection with making the motion to expunge the lis pendens is $3,839.50, which consists of (1) $2,300.50 for Ms. Schierling's services (4.3 hours at $535 per hour); and (2) $1,539.00 for Mr. Kelly's services (5.4 hours at $285 per hour).

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