Case Name: Gregory Belcher vs. Paul Greenfield
Case No.: 18CV336806

Defendant Paul Greenfield has filed a motion to expunge lis pendens.

A party seeking to record a lis pendens “shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses” of adverse parties and to all owners of record. (CCP § 405.22.) “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.” (CCP § 405.23.)

The Court finds that Plaintiff did not comply with this service and notice requirement. Certainly Plaintiff knew that Paul Greenfield was adverse, as he was the first named defendant in the original complaint. Plaintiff failed to comply with the requirements for filing and serving the lis pendens at issue herein, and the lis pendens is “void and invalid” under section 405.23.

Moreover, a lis pendens is properly expunged without a bond if the court finds either: that Plaintiffs’ complaint does not contain a “real property claim” (i.e., one affecting title or possession of specific real property or use of an easement, etc.; CCP § 405.4; CCP § 405.31); or, the claimant “has not established by a preponderance of the evidence the probable validity of the real property claim.” (CCP § 405.32; BGJ Associates LLC v. Superior Court (1999) 75 Cal.App.4th 952, 972.)

The burden of proof on is on the lis pendens claimant: unlike most other motions, the burden of proof is on the party opposing the motion to expunge, in this case Plaintiffs Gregory Belcher and Vilasni Ganesh. The lis pendens claimants (Plaintiffs) bear the burden of establishing the existence of a “real property claim” and that it is “probably valid.” (CCP § 405.32.) Plaintiffs thus have the burden of producing sufficient evidence to support a finding that plaintiffs will “probably” win at trial.

The allegations of the complaint determine whether a “real property claim” is involved; no independent evidence is required. (Urez Corp. v. Sup.Ct. (Keefer) (1987) 190 Cal.App.3d 1141, 1149.) A “real property claim” is any cause of action which, if meritorious, would affect the title to, or the right to possession of, specific real property.

The first analysis, whether the complaint contains a real property claim, is accomplished by reviewing the complaint in similar fashion to a demurrer. It is not enough that the action merely relates to real property.

The Court finds that the First Amended Complaint does not contain a real property claim. The real property in question was sold by foreclosure to Defendant, and Plaintiffs have not alleged sufficient facts to overcome their lack of title in the property. Plaintiffs told Defendant at the time of the loan that it was a non-owner occupied and non-consumer loan. They stated then and they allege that they intended to use the loan funds to repair the property to sell for profit, not live in it. Although Belcher now claims that they lived in it, Defendant disputes that claim. Moreover, if Plaintiffs seek to overcome a completed foreclosure sale, they must tender the full indebtedness against the property, which they have not done. Accordingly, the suit does not affect title to or possession of the property for lis pendens purposes.

Although the Court need not otherwise address whether Plaintiffs have met their burden to establish that any alleged real property claim has probable validity, the Court finds that they have not. “Probable validity” means “it is more likely than not that the (plaintiffs) will obtain a judgment against the defendant on the claim,” namely that the claim seeking title to real property has probable validity. (CCP § 405.3.) To avoid a motion to expunge under CCP § 405.32, the burden is on the lis pendens claimant (plaintiff) to establish the “probable validity” of the real property claim “by a preponderance of the evidence.” (CCP § 405.32) If conflicting evidence is presented, the judge must weigh the evidence in deciding whether plaintiff has sustained its burden.

Plaintiffs rely largely on the unverified First Amended Complaint for support for the opposition. The Court sustains Defendant’s objections to this evidence and will not consider the First Amended Complaint as evidence. Although Plaintiffs also claim to have served multiple declarations in opposition, only the declaration of Robert Reyes is found as a part of the opposition.

Plaintiffs argue that Dakota Note, LLC, the party that allegedly provided the loan to them was unlicensed, although it is hard to find evidence to support this allegation in the confusing opposition that was filed. However, Defendant has provided evidence that the loan was arranged by a licensed broker.

After considering the evidence presented, the Court finds that the evidence submitted by Plaintiffs does not rise to the level of probable validity on any of the claims that could conceivably be real property claims.

Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if the court finds the underlying claim is not a “real property claim” or that its “probable validity” has not been established “by a preponderance of the evidence,” it must order the lis pendens expunged. (CCP §§ 405.31, 405.32.)

IT IS HEREBY ORDERED that the Lis Pendens described above be expunged. Defendants shall immediately submit a separate order appropriate for recording that only includes the order to expunge Lis Pendens without the legal analysis. As noted below, the order to expunge will not be signed until the waiting period required by section 405.35 has expired.

Pursuant to Code of Civil Procedure section 405.35, the Order to expunge shall not become effective and shall not be recorded until 20 days after service of written notice of this Order signed by the Court, or upon the final adjudication of any petition for writ of mandate timely filed pursuant to Code of Civil Procedure section 405.39.

The Court will consider an award of attorney fees and costs by way of noticed pursuant to Code of Civil Procedure section 405.38.

Moving party shall prepare both orders that are required.