Tieu v. Tieu
Case No. 18cv327073

Defendant Hanh Tran Thi Lieu (“Tran”) moves under Code of Civil Procedure section 405.31 to expunge a lis pendens on her mobile or manufactured home placed by Plaintiff Nhu Tieu.

1. In the Court’s view, there are no service issues that would justify expunging the lis pendens. Moreover, there is no issue or claim preclusion from the Court’s previous orders concerning previous recordings of lis pendens by plaintiff. In his December 2018 order, Judge Stoelker made no explicit findings about the probable validity of plaintiff’s claim, and did not rely solely on that issue to find against plaintiff.

2. Based on the declarations and documents submitted by Plaintiff, the Court finds that plaintiff has established by a preponderance of the evidence the probable validity of his claim. (See § 405.32.) (Defendant Tran’s evidentiary objections are overruled.) Defendant Tran provides no actual evidence to the contrary and barely any relevant argument.

3. That leaves one issue for the Court to resolve: has plaintiff shown by a preponderance of the evidence that his fraudulent transfer cause of action contains a “real property” claim? If plaintiff carries that burden, then the motion to expunge the lis pendens should be denied, unless the Court believes that “adequate relief can be secured to the [plaintiff] by the giving of an undertaking.” (§ 405.33.) Given the alleged value of the mobile/manufactured home (over $300,000) versus the proposed undertaking by defendant Tran ($10,000), the Court does not believe that adequate relief could be secured through an undertaking or bond. Therefore, in the Court’s view, if plaintiff proves by a preponderance of the evidence that his fraudulent transfer cause of action contains a real property claim, then the Court would deny the motion and keep the lis pendens; if plaintiff doesn’t prove it, then the Court would grant the motion and expunge the lis pendens.

So on to the merits. Plaintiff alleges in her complaint that defendant Nghia Tieu (the ex-husband of plaintiff) bought a mobile home and placed it in the name of defendant Tran to thwart collection efforts. (Complaint, ¶¶ 15, 17.) Specifically, Plaintiff alleged:

Plaintiff is also informed and believes that in March of 2016, judgment debtor, Nghia Tieu paid money to purchase a mobile home located at 390 Chateau La Salle Drive, in San Jose (the “Mobile Home”), but he put the mobile home in the name of Defendant Tran in order to prevent Plaintiff from taking it once judgment was entered in the civil action. (Complaint, ¶ 15.)

In assessing whether, under section 405.31, this allegation contains a real property claim, the Court “must engage in a demurrer-like analysis.” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647–648.) That means the Court cannot look at evidence separately provided by the parties, such as photographs (plaintiff) or declarations (defendant Tran). Neither party asked the Court to take judicial notice of any documents.

Focusing on what plaintiff pled, a “mobilehome” generally is personal property unless it has been converted into real property by complying with the regulations regarding placement upon a foundation. (Health & Safety Code § 18551(a).) Plaintiff has not pled that the mobilehome at issue here has been installed on a foundation system in compliance with the applicable regulations.

Therefore, the mobilehome at issue here is not real property. Plaintiff argues that even if the mobilehome itself is not real property, a claim to it would “affect” specific real property. It is true that “real property claim” is defined by section 405.4 as “the cause or causes of action in a pleading, which would, if meritorious, affect (a) title to, or the right to possession of specific real property . . . .” (italics added.) But the mobilehome here is separate from the real property on which it sits. A claim to the mobilehome does not affect title to, or the right to possess, the specific real property on which the mobilehome is located.

Plaintiff’s citation to Tucson Estates v. Superior Court (1986) 151 Ariz. 600, is inapt. That cases involved a restrictive covenant that would run with the real property at issue. We have nothing like that here.

In the end, Plaintiff has not proved by a preponderance of the evidence that his fraudulent transfer cause of action is a “real property claim.” Accordingly, the Court GRANTS the motion to expunge the lis pendens. And since plaintiff has not proven that his claim is a real property claim, the Court will not order an undertaking. (See § 405.32.)

4. The Court believes that both sides’ actions had substantial justification, and therefore does not order either side to pay attorney fees and costs.