Case Number: KC069390 Hearing Date: March 05, 2018 Dept: J

Re: Concepcion Amparo v. Concepcion Amparo Trustee, etc., et al. (KC069390)

MOTION TO EXPUNGE LIS PENDENS OR, IN THE ALTERNATIVE, REQUIRE PLAINTIFF TO POST A BOND, AND REQUEST FOR ATTORNEYS’ FEES AND COSTS

Moving Party: Nonparty Applicant Breckenridge Property Fund 2016, LLC

Respondents: No timely opposition filed (due 2/20/18)

POS: Moving OK

Plaintiff alleges that, during the period between 3/1/10 and 4/1/11, she was the victim of a mortgage modification scam perpetrated by Miguel Macias aka Michael Martinez and his agents/accomplices, including Laura Cecilia Carlson and Maria Victoria Santos dba “Home Recovery Trust,” wherein she was induced to pay substantial sums to Home Recovery Trust and to quitclaim the property located at 15438 Fellowship Street in La Puente (“property”) to a bogus “Michael Martinez trustee of the Ellen Aniston, Dan Aniston, Jamie Romolini, Kurt Romolini, Mya Toss AMD Melvin Toss.” Plaintiff further alleges that on 1/21/11, a grantor purporting to be Michael Martinez, as trustee, executed and recorded a quitclaim deed granting the property from “Michael Martinez trustee of the Ellen Aniston, Dan Aniston, Jamie Romolini, Kurt Romolini, Mya Toss AMD Melvin Toss” to “Concepcion Amparo Trustee of the Brayan Khader, Soane Khader, Eric Jot, Melina Jot, Melvin Bailey and Natalay Bailey Trust.” Plaintiff alleges that she attempted to sell the property in 2017 but discovered she could not secure title insurance due to the cloud that exists on the property. The complaint, filed 6/16/17, asserts causes of action against Defendants Concepcion Amparo Trustee of the Brayan Khader, Soane Khader, Eric Jot, Melina Jot, Melvin Bailey and Nataly Baily Trust, All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud on Plaintiff’s Title Thereto and Does 1-10 for:

Cancellation of Instrument

Quiet Title

On 9/13/17, defendants’ defaults were entered. A Status Hearing is set for 3/5/18.

Applicant Breckenridge Property Fund 2016, LLC (“Applicant”) moves for an order, per CCP §§ 405.30, 405.31, 405.32 and 405.34, to expunge the Notice of Pendency of Action previously recorded by Plaintiff Concepcion Amparo (“plaintiff”) with respect to the property located at 15438 Fellowship St. in La Puente. In the alternative, Applicant requests, per CCP § 405.34, that the court order plaintiff to provide Applicant with an undertaking in the amount of $363,600.00 as a condition for maintaining the lis pendens. Applicant also seeks an award of attorneys’ fees and costs per CCP § 405.38 in the amount of $2,185.00 for services performed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE:

Applicant’s request for judicial notice (“RJN”) is ruled on as follows: GRANT as to Exhibit “1” (i.e., deed of trust recorded 7/28/05); GRANT as to Exhibit “2” (i.e., “Notice of Default” recorded 5/4/16); GRANT as to Exhibit “3” (i.e., “Notice of Trustee’s Sale” recorded 8/19/16); GRANT as to Exhibit “4” (i.e., “Trustee’s Deed Upon Sale” recorded 8/25/17); GRANT as to Exhibit “5” (i.e., “Complaint for Unlawful Detainer” filed 9/1/17 in case styled Breckenridge Property Fund 2016, LLC v. Amparo, Case No. 17PSUD00306 [“Unlawful Detainer Action”]) and GRANT as to Exhibit “6” (i.e., judgment filed 10/5/17 in the Unlawful Detainer Action).

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” CCP § 405.30 (emphasis added).

“In proceedings under this chapter, the 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. “In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” CCP § 405.32.

“Unlike other motions, the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim. (Code Civ. Proc., § 405.30). The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32).” Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.

“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.” CCP § 405.38.

Applicant has concurrently filed an application for leave to intervene to expunge the lis pendens. Applicant claims an interest in the property as current owner after purchase at trustee’s sale. (RJN, Exhibit “4”). Applicant’s application is granted.

By failing to oppose the motion, moreover, plaintiff has not met her burden. Accordingly, the motion is granted, with no bond. Applicant is entitled to its attorney’s fees, per CCP § 405.38, in the amount requested.