Case Number: BC576263 Hearing Date: February 22, 2018 Dept: 47

Yellowstone Investments LLC v. Pablo Nunez Russo

MOTION TO EXPUNGE LIS PENDENS AND UNDERTAKING

MOVING PARTY: Defendant Pablo R. Nunez Russo, in pro per

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant has breached an agreement to sell the subject real property to Plaintiff.

Defendant Pablo R. Nunez Russo, in pro per, moves to expunge lis pendens and undertaking.

TENTATIVE RULING:

Defendant Pablo R. Nunez Russo, in pro per’s motion to expunge lis pendens and undertaking is DENIED without prejudice.

DISCUSSION:

Motion To Expunge Lis Pendens

The motion was not served upon Plaintiff’s counsel at the correct address. It was served

upon Plaintiff’s counsel at 21631 Heather Lee Lane, Chatsworth, CA 91311. However, on August 17, 2017, Plaintiff’s counsel had filed a Notice of Change of Address to 2420 Rikkard Drive, Thousand Oaks, CA 91362

Moreover, the Notice of Motion presents three different possible hearing dates for this motion, which renders such notice ambiguous. The Notice of Motion caption page indicates that the “Expunge Date” is February 22, 2018, the “Hearing Date” is October 26, 2017, and that “NOTICE IS HEREBY GIVEN that on November 7, 2017” the hearing on the motion will occur.

Nonetheless, on January 29, 2018, the Court noted in its minute order re: the motion to be relieved as counsel filed by Defendant’s counsel that there was a motion to expunge lis pendens set for hearing on February 22, 2018. Plaintiff’s counsel appeared at that hearing and there is no indication that Plaintiff’s counsel never received a copy of the motion. As such, the Court will assume that Plaintiff’s counsel did receive a copy of the motion, and received notice that the hearing would take place on February 22, 2018.

On the merits, Defendant has not presented a persuasive argument as to why: (1) the pleading on which the notice is based does not contain a real property claim (CCP § 405.31); or (2) why the claimant cannot established by a preponderance of the evidence the probable validity of the real property claim (CCP § 405.32); or (3) or why adequate relief can be secured to the claimant by the giving of an undertaking (CCP § 405.33); or (4) why the lis pendens is void and invalid for failure to comply with the service and filing requirements of CCP § 405.22.

Accordingly, the motion to expunge lis pendens is DENIED without prejudice.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 22, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court