2013-00154480-CU-PO

Albert Borrego vs. Delia Martinez

Nature of Proceeding:  Motion to Expunge Lis Pendens

Filed By:  Krogh, Shawn

Defendants Delia Martinez (“Delia”) and Rosa Willock’s (“Rosa”) (collectively
“Defendants”) Motion to Expunge Lis Pendens is ruled upon as follows.

This is an action for Elder Financial Abuse, Fraud, Constructive Fraud and Breach of
Fiduciary Duty.  Plaintiffs are Ricardo Borrego-Martinez’s (“Borrego- Martinez”)
children. Plaintiffs allege that they bring this action because the personal
representative of the Estate of Ricardo Borrego-Martinez (i.e. Delia) (the “Estate”) is
alleged to have committed Elder financial abuse against Borrego-Martinez.  Borrego-
Martinez.   Plaintiffs allege that they bring the complaint in the capacity of an interested
person under Welfare and Institutions Code section 15657.3, subdivision (d)(1)(C).
Borrego-Martinez died on March 26, 2012 suffered from dementia beginning in 2005.
Plaintiffs allege that Delia was Borrego-Martinez’s agent under a Durable Power of
Attorney for Asset Management.  Plaintiffs allege that Defendants committed various
wrongful acts, including Delia coercing Borrego-Martinez to make a donative transfer
of 50% interest in real property located at 8315 Boron Way, Sacramento CA (the
“Property”). This transaction occurred on May 27, 2009.

The lis pendens was recorded on May 27, 2014.  Defendants have entered into an
agreement to sell the property.

The motion to expunge the lis pendens requires the Court to determine the “probable
validity” of the claims brought in the action. The “probable validity” is tested by the
preponderance of evidence. (Code of Civil Procedure §405.32.) In proceedings under
this chapter, the court shall order that the notice be expunged if the court finds that the
claimant has not established by a preponderance of the evidence the probable validity
of the real property claim.  (Code of Civil Procedure §405.32.) In such a motion, the
Court must “consider the relative merits of the positions of the respective parties and
make a determination of the probable outcome of the litigation.” (Howard S. Wright
Construction Co . v. Superior Court (2003) 106 Cal.App.4th 314, 319-320.)  The
plaintiff has the burden of proof to establish the probable validity of the real property
claim. (Code of Civil Procedure §405.30.)  “Probable validity” is defined as it being
“more likely than not that claimant will obtain a judgment against the defendant on the
claim.” (Code of Civil Procedure §405.30.)

Defendants move to expunge the lis pendens on the sole ground that Plaintiffs have
failed to meet the burden of showing a preponderance of evidence supporting the real              property claim.  Defendants argue that Plaintiffs have not stated a real property claim
because they have prayed for monetary damages and none of their requested relief
affects title to, or the right to possession of the Property.

In opposition to the motion, Plaintiffs argue that they are not merely requesting
monetary damages.  With respect to the Elder Abuse cause of action, Plaintiffs also
seek “a determination under Probate Code section 259 that Defendants Martinez and
Willock predeceased Borrego-Martinez, is not entitled to any property of the Estate of
Borrego-Martinez, and must reimburse the Estate of Borrego-Martinez for any property
received to date.”  (Complaint, Prayer ¶6.)

In reply, Defendants argue that Probate Code section 259 does not affect title or right
of possession of the Property.  The Court agrees.  Probate Code section 259 provides
that a person who is found liable for physical abuse, neglect, or financial abuse of the
decedent or convicted for the same shall be deemed to have predeceased the
decedent.  Such person, therefore, “shall not (1) receive any property, damages, or
costs that are awarded to the decedent’s estate in an action [for physical abuse,
neglect, or financial abuse of an elder decedent] whether that person’s entitlement is
under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in
Section 39, if the instrument nominating or appointing that person was executed during
the period when the decedent was substantially unable to manage his or her financial
resources or resist fraud or undue influence.”  (Prob. Code §259.)

“[A] person found liable under subdivision (a) of section 259 is deemed to have
predeceased the decedent only to the extent the person would have been entitled
through a will, trust, or laws of intestacy to receive a distribution of the damages and
costs the person is found to be liable to pay to the estate as a result of the abuse.
Section 259 does not necessarily eliminate the abuser’s entitlement to a share of the
estate; it simply restricts the value of the estate to which the abuser’s percentage
share is applied and prevents that person from benefiting from his or her own wrongful
conduct.”  (Estate of Dito (2011) 198 Cal. App. 4th 791, 803-804.)

Here, the Court is not dealing with the issue of whether Defendants are entitled
“through a will, trust, or laws of intestacy to receive a distribution of the damages and
costs the person is found to be liable to pay to the estate as a result of the abuse.”  (Id
.)  Moreover, as currently pled, Plaintiffs appear to seek money damages rather than a
transfer of property.

Given the above, the Court concludes that Plaintiffs have failed to demonstrate the
probable validity of a real property claim and thus, pursuant to §405.32, the Court
“shall order that the notice [of pendency] be expunged.”  Accordingly, the motion is
GRANTED.

Defendants’ request for attorneys’ fees and costs in the amount of $40 is granted ($40
filing fee).  Here, Defendants’ counsels’ declarations fail to provide their
background/experience to justify the $275 hourly rate.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.