2018-00234490-CU-OR

Barbara Borkowski vs. Stewart Title Guaranty Company

Nature of Proceeding: Motion to Expunge Lis Pendens

Filed By: Robertson, Catherine S.

Defendant Stewart Title Guaranty Company’s (“STGC”) Motion to Expunge Lis Pendens is unopposed and is granted.

This matter was continued to this date to be heard by Judge Brown after counsel for plaintiff filed a challenge pursuant to CCP 170.1(6)(B) as to Judge Cadei.

As recited in the “Notice of Motion”, “[t]his Motion is made on the grounds that the Complaint on which the Lis Pendens is based does not contain a real property claim.” Notice, p. 1, ll. 23-24.

In the instant matter, STGC requests that this court expunge that Notice of Pendency of Action recorded with the Sacramento County Clerk Recorder concerning the real property owned by Barbara Borkowski, located at 2121 Magnum Court, Elverta, CA 95626, on the basis that the Notice of Pendency of Action is not valid.

Code Civ Proc, secs. 405.30, 405.31 and 405.32 allows the court to remove an

improperly recorded lis pendens upon a motion to expunge. Unlike other motions, when such a motion to expunge is brought the burden is on the party opposing the motion to show the existence of a real property claim. (Kirkeby v. Superior Court (2004) 33 Cal. 4th 642, 647.)

“..[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.” CCP 405.31. A “real property claim” is a claim which, if meritorious, would “affect” title to, or the right to possession of, specific real property. CCP 405.4. In this case, the challenge to the lien is not a real property claim, but instead an attempt to re-litigate the underlying action in which the judgment was entered.

In this action plaintiff contends Stewart Title has an adverse claim to the title to the residence owned by plaintiff and her husband. Stewart Title recorded a judgment lien on the property for a judgment it obtained against plaintiff’s husband in another case. As will be noted, below, this judgment was affirmed on appeal in October of 2017. In an unpublished ruling the Appellate Court affirmed both the “probate order and civil judgment. …”

The First Amended Complaint contends that the underlying judgment against plaintiff’s husband was wrongfully obtained by Stewart Title because it fraudulently convinced Judge Chang to overrule her husband’s demurrer in the underlying case. Plaintiff contends that her husband’s demurrer in the underlying case should have been sustained without leave to amend. Instead, on February 25, 2014, Judgment was entered against Michael Borkowski, for Breach of Contract and Unjust Enrichment, in the amount of $574,828.84. (Request for Judicial Notice, hereinafter “RJN”), Exhibit B. An Abstract of Judgment was recorded on April 14, 2014. RJN, Exhibit C. Appeal was made by Michael Borkowski, and the judgment was affirmed. RJN, Exhibit D. Indeed, STGC argues “The Notice of Pendency of Action states that this matter concerns a real property claim. Such a statement is a blatant misrepresentation of the filings in this matter, since the “claim” is simply the filing of an Abstract of Judgment against Joint Tenant Michael Borkowski, husband of Barbara Borkowski.” (Memorandum, p.1, ll. 23-26.) There is no real property claim in this case.

On June 19, 2018, almost two years after the filing of the Abstract of Judgment, Michael Borkowski, for his wife, Barbara Borkowski, executed a Notice of Pendency of Action in this matter (“Lis Pendens”). RJN, Exhibit A. The Notice of Pendency of Action states:

NOTICE IS GIVEN that the above-captioned action was commenced on June 8, 2018, in the above-captioned court by Barbara Borkowski, plaintiff, against Stewart Title Guaranty Company; the action is now pending’ in the above court.

The above-captioned action alleges a real property claim affecting certain real property that is situated in Sacramento County, California, and that is located at 2121 Magnum Court, Elverta, CA. 95626; recorded in the Official Records of the County of Sacramento, Book 20070129, page 1027.

Precedent to this filing, in action No. 2010-00082287, a motion to set aside the money

judgment was heard by Judge Krueger of this court. In pertinent part, the Ruling states: “Borkwoski lost in the trial court and on appeal. He nonetheless argues this court should set aside the judgment because there was no subject matter jurisdiction. The court disagrees.” Judge Krueger further wrote: “Next, Borkowski argues Stewart Title prevailed at a demurrer proceeding due to its
counsel’s misrepresentations to the court, the Hon. Shelleyanne Chang presiding. Borkowski does not explain how any alleged misrepresentations divested the court of subject matter jurisdiction, and the court is not persuaded. The court does not find that any misrepresentation was actually made or that Stewart Title’s counsel behaved in an unethical fashion.” (RJN, Ex. E.) Of course, a superior court is but one tribunal, even if it be composed of numerous departments. . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department . . . .'” Sandco Am. v. Notrica, (1990) 216 Cal App. 3d 1495, 1508.

The Lis Pendens asserts that this “action alleges a real property claim affecting real property, at 2121 Magnum Court, Elverta, CA 95626.” In fact, however, the allegations of the Complaint make absolutely no allegation relating to a “claim” against the property, but instead reiterate allegations that “misdeeds” were made in a prior proceeding. First, this court may not review that determination at this juncture. Further, in reviewing the Complaint and Amended Complaint, there are no “new” allegations made in this action which have not been addressed by this Court previously (and affirmed on appeal in an unpublished ruling issued on October 23, 2017). There are no claims that STGC has made against the subject property, other than an unpaid judgment lien. Thus, although the pleading attempts to state a cause of action for “quiet title.” this action does not involve a real property claim.

Further, that a judgment lien may be assessed against a debtor’s real property is not a novel proposition. As noted by the Third Appellate Court, “While many classes of property may be taken on execution, only two classes are subject to the lien of a judgment — real property owned by the debtor at the time of docketing and real property that he may afterward acquire. While any interest in real property, legal or equitable, may be seized and sold under execution, only real property actually owned by the judgment debtor will support a judgment lien.” Belieu v. Power (1921) 54 Cal. App. 244, 247. A judgment lien on real property is created under a money judgment by recording an abstract of the judgment in the office of the county recorder of the county where the real property is located. (CCP § 697.310, subd. (a).) Indeed, a judgment lien on real property is a general lien, attaching to practically all of the judgment debtor’s real property interests where an abstract of judgment is recorded. (§ 697.340, subd. (a) [“A judgment lien on real property attaches to all interests in real property in the county where the lien is created (whether present or future, vested or contingent, legal or equitable) that are subject to enforcement of the money judgment against the judgment debtor pursuant to Article 1 (commencing with Section 695.010) of Chapter 1 at the time the lien was created …”]; Livingston v. Rice (1955) 131 Cal.App.2d 1, 3-4.) The lien is created even though the particular real property interests are not described, and regardless of whether the judgment creditor even knows they exist. Further, the lien attaches not only to real property interests presently held by the judgment debtor, but to those acquired in the future, thus assuring the judgment creditor priority as to after-acquired interests. (§ 697.340, subd. (b).)

Thereafter, after obtaining a judgment lien, the creditor must take additional steps to collect on the judgment, and the usual method is to levy on specific property by writ of execution. (Schwartz et al., Cal. Practice Guide, Enforcing Judgments and Debts (The

Rutter Group 1992) P 6:300.) The judgment creditor obtains from the county clerk a writ of execution, directing the sheriff or other levying officer to enforce the judgment. ( Code Civ. Proc., § 699.510, 699.520.) The creditor delivers the writ to the levying officer with instructions including a description of the property to be levied upon.

( Code Civ. Proc., § 687.010, subd. (a)(1).) The officer levies on real property by recording a copy of the writ and a notice of levy with the county recorder. ( Code Civ. Proc., § 700.015, subd. (a).) The levy creates an execution lien on the property. ( Code Civ. Proc., § 697.710.) Service of a copy of the writ and notice of levy on the judgment debtor triggers a 120-day grace period during which the debtor may redeem the property from the lien. ( Code Civ. Proc., § 701.545.)

California courts have long recognized that the Lis Pendens procedure is susceptible to serious abuse in that it provides “unscrupulous plaintiffs with a powerful lever to force settlement of groundless or malicious suits.” BGJ Associates, LLC v. Superior Court (M2M2, LLC), (1999) 75 Cal. App. 4th 952, 969. The true purpose of a lis pendens is to provide notice of pending
litigation that may affect title to or possession of real property “and not to make plaintiffs secured creditors of defendants nor to provide plaintiffs with additional leverage for negotiating purposes.” Urez Corp. v. Superior Court (1987) 109 Cal. App. 3d 1141, 1149.

Defendant’s Request for Attorneys fees is granted in the requested amount of $6,413.25.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.