Case Number: EC062049    Hearing Date: July 25, 2014    Dept: NCB

8. EC062049
VARTAN DERBEDROSSIAN v HOVHANES VAHANIAN
Motion to Expunge Lis Pendens

The Complaint alleges that the Plaintiffs entered into a contract with the Defendants under which the Defendants agreed to sell their real property for $1,210,000. The Defendants breached the contract by refusing to transfer the property to the Plaintiffs on the ground that their signature was forged on the agreement. The Plaintiff brought this action to seek specific performance of the contract. There are two causes of action in the Complaint: 1) Specific Performance and 2) Breach of Contract.

This hearing concerns the Defendants’ motion to expunge the lis pendens recorded on the property at 2023 Dublin Ave., Glendale CA 91206. The Plaintiffs filed the notice of lis pendens on March 12, 2014.

Under CCP section 405.30, at any time after a notice of pendency of action has been recorded, any party with an interest in the real property may apply to the Court to expunge the notice.

A lis pendens may be expunged either under CCP section 405.31 if the pleadings do not contain a real property claim or under CCP section 405.32 if the Court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. Under CCP section 405.30, the party claiming the lis pendens has the burden of proof of showing either that the pleadings contain a real property claim or that the probable validity of the real property claim can be established by a preponderance of the evidence. Accordingly, the Plaintiffs have the burden of showing that their complaint includes a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence.

The Plaintiffs’ real property claim is their first cause of action for specific performance. This is a cause of action for breach of contract in which the remedy is a judgment directing the Defendants to perform their duties under the real estate purchase contract, i.e., to transfer the property to the Plaintiffs.
The Defendants argue that the Plaintiffs cannot meet their burden because the Defendant, Anna Vahanian, did not sign the purchase and sale agreement. Anna Vahanian offers facts in paragraphs 3 to 7 of her declaration that she has never desired to sell her home and that she never signed or authorized her signature on any listing agreement or contract. In addition, Ms. Vahanian states that she had never met the Plaintiffs. This is evidence that there was no real estate purchase agreement between the parties, i.e., that the Plaintiffs cannot establish the essential element that a contract existed between the parties.

The Plaintiffs provide evidence that impeaches Anna Vahanian’s testimony and that tends to demonstrate that they can establish that a contract existed between the parties.
First, the Plaintiff, Vartan Derbedrossian states that he and his wife visited the property with their agent on January 18, 2014 and that they were greeted by Anna Vahanian. Mr. Derbedrossian states that Anna Vahanian welcomed them into her home, allowed them to tour the house, and discussed the neighbors and aspects of the property. Mr. Derbedrossian states that Ms. Vahanian never indicated that she was unwilling to sell the property and that she knew that the Plaintiffs were potential buyers for her home. This is evidence that impeaches Ms. Vahanian’s statement that she never intended to sell her home and that she had never met the Plaintiffs.
Second, the Plaintiffs provide a copy of the purchase agreement in exhibit A to the declaration of Vartan Derbedrossian. It contains Anna Vahanian’s initials and is signed in her name on page 8. In addition, the Plaintiffs attach the counteroffers, which also include Ms. Vahanian’s signature. This is evidence that impeaches Anna Vahanian’s statement that she did not sign the agreement. Further, it is evidence that tends to demonstrate that there was a contract between the parties.
Third, the Plaintiffs provide evidence in the declaration of their real estate broker, Pakrad Markarian. Mr. Markarian states that when he visited the property with the Plaintiff, Vartan Derbedrossian, the Defendant, Anna Vahanian, opened the door and allowed him access. Further, Mr. Markarian states that he gave his business card to Ms. Vahanian and that she did not express any surprise or concern about a visit from a real estate agent and client. Mr. Markarian states that he made three visits and that Mr. Vahanian allowed him access and provided access to the rooms in the residence. Mr. Markarian states that he and his client asked questions about the property and Ms. Vahanian willingly provided answers. This is evidence that tends to impeach Anna Vahanian’s statements that she never intended to sell her home.
Fourth, the Plaintiffs provide evidence in the declaration of their attorney, Christopher Delaplane, that he obtained in a conversation with the Defendants’ agent, Tom Kwak. Mr. Delaplane states that Mr. Kwak advised him that he met with both Defendants before listing the property, that Ms. Vahanian did not express any unwillingness to sell the property, and that he conducted an open house with Ms. Vahanian present.
Mr. Delaplane states that Mr. Kwak declined to provide a declaration for this hearing. Mr. Delaplane adds that if the Court desires sworn testimony, that he requests that the hearing be continued 60 days so that he can take the deposition of Mr. Kwak.

These facts indicate that the Plaintiffs have or will obtain evidence that impeaches Anna Vahanian’s statements that she never intended to sell the property, e.g., she allowed the Plaintiffs to tour her home and met with an agent to list the property. Further, these facts indicate that the Plaintiffs have evidence that there was a contract between the parties, i.e., the copy of the contract signed by all parties.
These facts meet the Plaintiffs’ burden because they indicate that, by a preponderance of the evidence, the Plaintiffs can establish the probable validity of their real property claim.

Therefore, the Court denies the Defendant’s motion to expunge the lis pendens because the Plaintiffs have met their burden of demonstrating with admissible evidence that the probable validity of their real property claim can be established by a preponderance of the evidence.