SUBJECT: Motion to expunge lis pendens
Moving Party: Defendant John H. Kohan; joinder by defendants Sunrise Financial LLC, Shahram Elyaszadeh, Yonah Samih, Citivest Financial Services Inc., and Edward Mazzarino
Resp. Party: Plaintiff Lucerne Valley LLC
The motion is DENIED.
Plaintiff commenced this action on 8/18/15 against defendants for: (1) vacate trustee’s deed of sale; (2) vacate trustee’s deed of sale; (3) quiet title; (4) breach of contract and breach of fiduciary duty; (5) fraud; and (6) violation of Business and Professions Code section 17200. The actions pertain to plaintiff’s agreement with Sunrise to secure refinancing of loans plaintiff had with other lenders.
When an action involves a claim affecting real property, a party to the action may, by recording a notice of lis pendens, preserve his or her rights or interest, if any, in the real property pending the final determination of the action. (La Paglia v. Sup. Ct.(1989) 215 Cal.App.3d 1322, 1326.) This notice provides constructive notice that the claim affecting the real property is still pending and, therefore, any taker of a subsequently created interest in that property thus takes that interest subject to any judgment rendered in the pending action. (Ibid.)
If a party abuses the use of a lis pendens, then a court may expunge the lis pendens. (Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 651.) After a claimant records a notice of pendency of action, any party to the action may move to expunge the lis pendens on any or all of three statutory grounds: (1) the complaint does not contain a real property claim; (2) the plaintiff cannot establish the probable validity of his or her real property claim; or (3) adequate relief may be secured to the plaintiff by the moving party's posting a bond. (Code Civ. Proc. §§ 405.30-405.33.)
“Unlike most other motions, the burden of proof is on the party opposing th...