Case Number: YC069676    Hearing Date: April 24, 2014    Dept: SWM

Honorable Laura C. Ellison
Department M

Thursday – April 24, 2014
Calendar No. 6

PROCEEDINGS

YC069676
Amir Pourtemour, an individual and dba Magic Skewers Restaurant v. Brennan Enterprises, L.P., et al.
1. Brennan Enterprises, L.P’s Motion to Expunge Lis Pendens

TENTATIVE RULING

Brennan Enterprises, L.P.’s Motion to Expunge Lis Pendens is granted pursuant to Code of Civil Procedure § 405.32.

Plaintiff fails to meet his burden to establish the existence of a real property claim and the probable validity of the claim. Code of Civil Procedure § 405.32; See Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 651. A “real property claim” means a cause of action that affects title to or the right to possession of specific real property. Code of Civil Procedure § 405.4.
Plaintiff has the burden of proof to show by a preponderance of the evidence that the complaint makes a real property claim and the probable validity of the claim. CCP 405.30.
Here, plaintiff’s allegations with respect to an alleged real property claim are based on his contention that an implied in fact or oral lease existed for a time period of greater than one year. While plaintiff titles the third cause of action in his newly filed First Amended Complaint, “breach of written lease,” the allegations of the FAC and the contentions in the opposition make clear that no written lease existed.

Pursuant to Civil Code Section 1624(a)(3) a contract for the leasing of real property for a period in excess of one year is invalid unless the lease or a note or memorandum thereof is in writing and subscribed by the party in charge.

Plaintiff argues that a letter from W. West Ventures, the property manager for defendant, dated September 14, 2007, attached as Exh. 2 of the opposition, acts as either the required writing, or, alternatively, acts as evidence of estoppel to rely on the statute of frauds.
This letter does not constitute the lease agreement or a note or memorandum which may evidence a lease agreement. Instead, the letter merely states that, should plaintiff sell the restaurant, defendant may be amenable to entering into a 10 year lease agreement with a 5 year option with the new tenant. This letter does not constitute a lease agreement. The letter merely provides an initial statement of a possibility of entering into a lease agreement. Further, for purposes important to this motion, this possibility of entering into a lease was with respect to a potential new tenant and not to plaintiff himself.
Therefore, plaintiff’s reliance on this letter to act as an estoppel to plead the statute of frauds is unavailing. Estoppel may apply where (1) an oral lease is made for more than one year; (2) the lessor represents expressly or by conduct that she will not rely on the statute of frauds; and (3) thereafter, the lessee changes position by going into possession and making valuable improvements on the leased property. See Beverly Hills Nat. Bank & Trust Co. v. Seres (1946) 76 Cal.App.2d 255, 261.
Here, there is no evidence that an oral lease was made for more than one year. Instead, defendant contends that a month to month lease arrangement existed for many years. Plaintiff fails to provide sufficient evidence to refute this contention. Instead, plaintiff merely confirms the existence of a long term tenancy but there is no evidence that the tenancy contemplated a lease for more than one year as opposed to a month to month tenancy. Further, there is no evidence that the lessor expressly or by conduct stated that it would not rely on the statute of frauds. Again, there was no issue regarding the statute of frauds from the landlord’s perspective based on the purported month to month tenancy.

Defendant is entitled to attorneys’ fees as the prevailing party on this motion. Code of Civil Procedure § 405.38. The amount provided to defendant is $2,160.00 payable within 30 days of this date.