Case Number: EC066804 Hearing Date: July 27, 2018 Dept: A

Catalano v Chavez Trust

MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO EXPUNGE LIS PENDENS

Calendar: 13

Case No: EC066804

Hearing Date: 7/27/18

Action Filed: 6/7/17

Trial: 10/1/18

MP: Plaintiff Valentina Catalano

RP: Defendant Patricia Hayikian, Trustee of the Chavez Trust

ALLEGATIONS IN COMPLAINT:

The property at issue in this action is located at 11848 Vanowen Street, North Hollywood, CA 91605. Plaintiff Valentina Catalano alleges that, pursuant to an agreement, she offered to pay consideration for the property and demanded that Defendants convey her the property. She alleges that Defendants have failed to convey the property to her. Thus, by way of this action, she seeks to have the property transferred and conveyed to her.

The complaint, filed June 7, 2017, alleges causes of action for: (1) specific performance; (2) breach of contract; and (3) breach of fiduciary duty.

RELIEF REQUESTED:

Plaintiff moves for reconsideration pursuant to CCP §1008 regarding the order granting Defendant’s motion to expunge lis pendens.

DISCUSSION:

Timeliness

Under CCP §1008(a), a party may seek reconsideration of a prior order by filing a motion within 10 days of service of the notice of order.

On March 23, 2018, the matter regarding Defendant’s motion to expunge notice of pendency of action came for hearing. The Court took the matter under submission. On March 28, 2018, the Court entered its ruling and adopted the tentative ruling published on March 23, 2018.

On May 10, 2018, Defendant filed the Order Granting Defendant’s motion. The proof of service shows that the notice was served by U.S. Mail on May 7, 2018.

Plaintiff filed the motion for reconsideration on May 21, 2018. As such, the motion was timely filed within 10 days after service of written notice of entry of the order.

New or Different Facts, Circumstances, or Law

A motion for reconsideration must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order. (CCP §1008(a).) The party making the application must state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Id.) CCP §1008(e) states that section 1008 specifies the Court’s jurisdiction with regard to applications for renew and that no application to renew any order may be considered unless made according to section 1008. The language of CCP §1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP §1008(a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.)

In support of her motion for reconsideration, Plaintiff provided a memorandum of points and authorities, as well as her declaration and attached exhibits. However, her declaration fails to include what new or different facts, circumstances, or law are claimed to be shown, pursuant to CCP §1008(a). Thus, this is a basis to deny the motion.

Also, a review of the motion for reconsideration’s memorandum of points and authorities reveals that this motion is essentially an attempt to re-argue Plaintiff’s opposition to Defendant’s underlying motion to expunge lis pendens, but by Plaintiff’s newly retained counsel. This is not a proper basis nor is it sufficient to constitute new or different facts, circumstances, or law.

Further, even if the Court were to discuss the merits of each of Plaintiff’s arguments, there would be more grounds to deny the motion for reconsideration. Plaintiff argues that the Court should reconsider its prior order because it committed judicial errors based on erroneous facts and misapplication of the law, which have become known by new counsel, which was not known to Plaintiff or Plaintiff’s prior counsel.

First, Plaintiff argues that the Court incorrectly found that Plaintiff’s deadline to remove contingencies expired on March 15, 2017 (21 days after February 22, 2017). Plaintiff argues that this finding is incorrect because section 14(D)(1) of the purchase agreement states that the seller must first deliver to the buyer a Notice to Buyer to Perform, which did not occur until May 3, 2017. However, this does not constitute new facts or evidence, and Plaintiff has not provided justification for the delay in citing to this particular section in the evidence when she had the opportunity to do so in opposition to the motion to expunge. (See Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) In addition, it should be noted that Plaintiff was provided with a Notice to Buyer to Perform, which Plaintiff acknowledged that she received in an email, and after her failure to perform, the agreement was cancelled. Thus, this is not a basis upon which reconsideration should be granted.

Second, Plaintiff argues that the Court applied the incorrect standard/law and engaged in an adjudication of the merits instead of only inquiring into the “forecast of probabilities” under Mix v. Superior Court (2004) 124 Cal.App.4th 987, 995. A lis pendens may be expunged either under CCP §405.31 if the pleadings do not contain a real property claim or under CCP §405.32 if the Court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. Under CCP §405.30, the party claiming the lis pendens has the burden of proof under sections 405.31 and 405.32. The phrase “probable validity” was written “from the perspective of a trial court judge trying to forecast, at some point before trial, the ‘probable’ outcome in the trial court.” (Mix, supra, 124 Cal.App.4th at 995.) “Probable validity” exists when “it is more likely than not that the claimant will obtain a judgment on the claim.” (CCP §405.3.)

A review of the Court’s prior order on the underlying motion shows that, after taking into consideration the evidence from the parties, it determined that Plaintiff failed to establish by the preponderance of the evidence the probable validity of her real property claim. (See Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 9(I)-J [“If conflicting evidence is presented, the judge must weigh the evidence in deciding whether plaintiff has sustained its burden.”].) The Court considered the evidence from both parties to make this determination. Also, in her motion for reconsideration, Plaintiff fails to provide any new or different facts, circumstances, or law to support her position that the standard regarding motions for lis pendens was incorrectly applied.

Third, Plaintiff argues that the Court misapplied the law in awarding attorney’s fees and costs because the Court failed to address if Plaintiff acted with substantial justification or that the imposition of fees/costs was unjust. CCP §405.38 provides: “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.” Again, Plaintiff fails to provide new or different facts, circumstances, or law to justify reconsideration of the motion to expunge. Moreover, Plaintiff has not provided any new or different law showing that the Court must expressly state that it did not find substantial justification or other circumstances before it awarded reasonable attorney’s fees and costs to Defendant. Rather the code section states that the Court shall direct that the prevailing party (Defendant) be awarded reasonable attorney’s fees and costs, or deny such a request if the other party acted with substantial justification or other circumstances make it unjust to impose fees/costs. In its prior order, the Court found that awarding fees and costs to Defendant was justified, and that no exception applied.

RULING:

Deny the motion for reconsideration. While Plaintiff provided a declaration, the declaration did not comply with CCP §1008(a). Also, she has failed to establish new or different facts, circumstances, or law such that reconsideration is warranted.