Case Number: BC535666    Hearing Date: August 22, 2014    Dept: 56

Case Name: Gille, et al. v. Coury, et al.
Case No.: BC535666
Matter: Motion to Expunge Lis Pendens

Tentative Ruling: Motion to expunge lis pendens is denied.

Plaintiffs M. Dorothy and Peter L. Gille (through their attorney-in-fact) filed this action against Timothy M. Coury, T. Michael LLC and other defendants. Plaintiffs assert causes of action for (1) financial elder abuse, (2) breach of fiduciary duty, (3) declaratory and injunctive relief, (4) fraud by concealment, (5) negligent infliction of emotional distress, (6) constructive trust and accounting, and (7) fraudulent transfer. Defendants Timothy Coury and T. Michael LLC move to expunge a lis pendens recorded against properties located at 654 Lillian Way and 3454 Perlita Ave. in Los Angeles.

The court shall expunge a lis pendens if 1) it finds that the pleading on which the notice is based does not contain a real property claim (CCP §405.31), or 2) it finds that the claimant has not established the probable validity of the claim (CCP §405.32). Defendants have based their motion on only the first ground.

The first ground under §405.31 involves an analysis that is analogous to a demurrer: the court must determine whether the plaintiff has alleged a “real property claim.” CCP §405.31, official comments; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647-48. A “real property claim” is one which would affect the title or right to possession of real property. CCP §405.4; Kirkeby, supra 33 Cal.4th at 647.

Plaintiffs argue that the 7th COA affects title to or the right to possession of the subject properties on Lillian Way and Perlita Avenue. The 7th COA is based upon the Uniform Fraudulent Transfer Act, CC §3439 et seq. Plaintiffs allege that Coury has taken steps to transfer the subject properties and encumber them to avoid a judgment by an unrelated third party (Chita Costales, one of Defendants’ employees) and other creditors. Plaintiffs also allege that they are creditors within the meaning of §3439.01, and they seek to void transfers concerning the subject properties to the extent necessary to satisfy the claims asserted in their complaint.

These allegations support a cause of action under the UFTA. See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1057 (holding that a tort claimant before judgment is a creditor under the UFTA); Estate of Blanco (1978) 86 Cal.App.3d 826, 832 (same). In Kirkeby, supra 33 Cal.4th at 650-51, the Supreme Court expressly held that a similar UFTA claim is a real property claim that supports a lis pendens.

The motion to expunge the lis pendens is denied.