MOTION FOR LIS PENDENS
June 26, 2026 Dept. 9 Tentative Rulings
15. 25CV1850 JOSHUA MICHAEL MCKEAN MANZER VS. ARIANA LYNN POWELL MOTION FOR LIS PENDENS
Defendant filed this motion to expunge notice of lis pendens on February 26, 2026. The notice was recorded on November 11, 2025. Defendant claims as the basis for the court to expunge: 1) Plaintiff cannot show valid real property claim 2) Statute of Frauds bars the claim as a matter of law 3) Tittle presumption is dipositive 4) Other basis not identified in the statue or case law as a basis to expunge.
“A party who asserts a claim to real property can record a notice of lis pendens, which serves as notice to prospective purchasers, encumbrancers and transferees that there is litigation pending that affects the property.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011, 57 Cal.Rptr.3d 686 (Amalgamated Bank).) “A lis pendens acts as a cloud against the property, effectively preventing sale or encumbrance until the litigation is resolved or the lis pendens is expunged.” (Ibid.) “A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged,” commonly known as a lis pendens. (§ 405.20.)
Such a party is a “ ‘[c]laimant’ ” for purposes of the lis pendens statute. (§ 405.1.) Once recorded, any party with an interest in the property can move to expunge the lis pendens pursuant to the procedure set forth in section 405.30. A comment to section 405.30 identifies four bases upon which expungement may be sought: (1) the lis pendens is void and invalid (§ 405.23), (2) the action as pleaded does not contain a real property claim (§ 405.31), (3) the claimant fails to establish the probable validity of the claim (§ 405.32), and (4) monetary relief provides an adequate remedy (§ 405.33). (Code com., 14A West's Ann.
Code Civ. Proc. (2004 ed.) foll. § 405.30, par. 2, pp. 336–337.) J&A Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022), 74 Cal. App. 5th 1, 15–16. The Plaintiff has the burden of proof that the notice lis pendens is valid. 1)Plaintiff cannot show a valid real property claim Plaintiff filed this quiet title action claiming that he provided a significant financial investment to the purchase and the parties always intended he would jointly own the property despite the title. Defendant maintains that the action is at best for money and therefore the Lis pendens is invalid.
In the instant matter Plaintiff has averred without dispute that money was provided, accepted and put toward the property. There is no direct evidence from either party regarding the nature of the transaction beyond the assertions in pleadings and motions. Plaintiff
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June 26, 2026 Dept. 9 Tentative Rulings
maintains in his pleading multiple basis for claims to title and not simply money damages including: breach of implied contract, declaratory relief, constructive fraud, promissory estoppel. The court finds it likely the Plaintiff will prevail on one or more of these causes of action based on the facts averred. 2) Statue of Frauds Civil Code 5.1624 and Code of Civil Procedure 5.1971 states:
(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent:
(3) An agreement for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. Civil Code 5 1624. No estate or interest in real property, other than for leases for a term not exceeding one year. ., nor any power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by the party's lawful agent thereunto authorized by writing.
However, both case law and the Code of Civil Procedure establish multiple exceptions to the Statue of Frauds. As such an unwritten contract for real property is voidable rather than void. Code of Civil Procedure 5.1971.
Exceptions to the Statute of Frauds Requirements The Legislature clarified that Code of Civil Procedure 5.1972 allows for relief in some cases where the Statute of Frauds might otherwise bar an action under some circumstances, including partial performance or where an equitable trust might arise to provide a remedy: (a) Section 1971 shall not be construed to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof. (b) Section 1971 does not affect the creation of a trust under Division 9 (commencing with Section 15000) of the Probate Code nor prevent any trust from arising or being extinguished by implication or operation of law. Code of Civil Procedure 5 1972 (emphasis added).
June 26, 2026 Dept. 9 Tentative Rulings
In addition to the statutory exception, case law also recognizes the partial performance exception to the Statute of Frauds:
[W]here assertion of the statute of frauds would cause unconscionable injury, part performance allows specific enforcement of a contract that lacks the requisite writing. (Earhart v. William Low co. (1979) 25 Cal.3d 503, 514, 158 Cal.Rptr. 887, 600 P.2d 1344.) The doctrine most commonly applies in actions involving transfers of real property. (Code Civ. Proc., 5 1972, subd. (a) [part performance available to enforce agreement to convey real property absent writing required under 5 1971 of same code]; Paul v. Layne & Bowler corp. (1937) 9 Cal.2d 561, 564, 71 P.2d 817; Sutton v. Warner (1993) 12 Cal.App.4th 415, 422, 15 Cal.Rptr.2d 632; Trout v. Ogilvie (1919) 41 Cal.App. 167, 174, 182 P. 333.)
In this case, Plaintiff maintains he provided one hundred percent of the down payment amount for the purchase of the property, and this was pursuant to an agreement between the parties that he would have an ownership interest in the property in consideration of his contributions. Plaintiff alleges that his financial and in-kind contributions to the property were made pursuant to the alleged agreement between the parties. The court finds the evidence sufficient to determine the Plaintiff is likely to prevail in establishing one or more exception to the Statue of Frauds.
3) Title presumption is dispositive
Defendant argues the title is dispositive as a basis to expunge the lis pendens. Plaintiff maintains the parties had an agreement to purchase the property jointly. However, a quiet title action is always an action which disputes the face of the recorded title. The facts alleged based on the reasons stated previously are sufficient to support the lis pendens.
TENTATIVE RULING #15: THE MOTION TO EXPUNGE LIS PENDENS IS DENIED. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
June 26, 2026 Dept. 9 Tentative Rulings
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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