Defendants Citimortgage, Inc. and CR Title Services, Inc. move to expunge the lis pendens filed by the plaintiffs on the property described as 13355 Henno Road, Glen Ellen, California 95442 (“the Property”). (SeeCCP § 405.30). Plaintiffs have not opposed the motion.

The Property is currently in escrow and the current owner, Mr. Flinkman, discovered the lis pendens from the title report which disclosed the recorded Notice of Pending Action. The prospective buyer’s loan lock expires February 12, 2014 and escrow has been extended to February 13, 2014. On January 10, 2104, Mr. Flinkman’s counsel requested plaintiffs voluntarily withdraw the Notice. Plaintiffs declined voluntarily removal. On January 21, 2014, counsel for the defendants left a voicemail giving notice of the reportedly intent to bring an ex-parte application for an immediate hearing on the defendants’ motion to expunge the lis pendens. A letter was sent the same day via Federal Express overnight mail again requesting voluntary withdrawal. As of January 23, 2014, defendants had not received any notice of withdrawal. Defendants argue the sole cause of action alleged in the Second Amended Complaint (“SAC”) for Negligence is not a real property claim.

This court found in its Order on Demurrers to Second Amended Complaint, that plaintiffs sufficiently alleged facts, which if found to be true, would support a finding that the defendants owed a duty of care to plaintiffs, citing Jolly v. Chase Home Finance, LLL (2013) 213 Cal.App.4th 872, 899. Defendants argue that no duty of care was owed to plaintiffs, citing Aspiras v. Wells Fargo Bank, N.A. (2013) 219 Cal.App.4th 948. Aspiras was depublished January 14, 2014 and is no longer citable authority.

However, the Second Amended Complaint seeks compensatory damages for defendants’ alleged negligence. “When a Plaintiff has a purely monetary interest in real property, a lis pendens can be removed.” (Coppinger v. Superior Court (1982) 134 Cal.App.3d 883, 892; see BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952). A lispendens may be expunged without a bond if the complaint does not contain a “real property claim” or the party asserting the lis pendens cannot establish the complaint’s “probable validity” by a “preponderance of the evidence.” (CCP §405.4, CCP §405.31, CCP §405.32).

No bond will be required. In requests for admissions deemed admitted by prior order of this court, plaintiffs admitted they lost no equity and suffered no other damage as a result of any action by defendant Citimortgage. The probable validity of plaintiff’s real property claim is in doubt, based on their deemed admissions. Plaintiffs have not met their burden of proof on this issue.

Accordingly, defendants’ motion to expunge the lis pendens is granted.

Defendants’ request attorney fees and costs as the prevailing party is granted in the amount of $3,164 (CCP §405.38). Defendants have shown by competent evidence that plaintiffs were given several opportunities to remove the lis pendens voluntarily and plaintiffs have not responded to this motion.