THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

The North one-half of Lot 25, Los Ranchitos, County of Ventura, State of California, as per map thereof recorded in the Office of the County Recorder of said county in Book 16, Page 75 and 76 of maps.

Defendants contend that the pleading on which the Lis Pendens is based does not contain a real property claim that has probable validity by a preponderance of the evidence, and that even if Plaintiff is found to assert a real property claim of probable validity, monetary relief would adequately compensate Plaintiff for any harm allegedly suffered.

In the alternative, Defendants seek an order requiring Plaintiff to file an undertaking of no less than $40,000.00 to Defendants as a condition of maintaining the Lis Pendens against the property, pursuant to Code of Civil Procedure section 405.34. Defendants allege that an undertaking is necessary to indemnify Defendants for all damages Defendants have incurred, and will incur, due to the Lis Pendens.

The motion further requests that Defendants be awarded their reasonable attorneys’ fees and costs incurred in connection with this motion pursuant to Code of Civil Procedure section 405.38, in the amount of $9,815.

2. Motion for Order that Plaintiff File an Undertaking

Defendants request the undertaking on the grounds that: (1) Plaintiff is not a resident of the State of California; he is, by his own pleading, a resident of the State of Florida (Compl. ¶ 1); (2) there is a reasonable possibility that Defendants will obtain judgment in their favor in this action; and (3) Defendants have incurred, and will continue to incur, substantial costs and attorney’s fees in defending this action, including fees and costs potentially recoverable pursuant to California Code of Civil Procedure section 2033.420. Thus, Defendants request that the Court order Plaintiff to file an undertaking in the amount of $43,434.90 before further prosecuting this action.

Discussion:

A. Evidentiary Objections

Both parties have filed evidentiary objections. However, each party also failed to submit a separate proposed order as required. (See Cal. Rules of Court, rule 3.1354.) Therefore, the Court declines to rule on the objections.

B. Request for Judicial Notice

The Court denies Defendant’s request for judicial notice because the documents are not relevant to the analysis of these motions.

C. Motion to Expunge

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

Defendant’s motion raises two main arguments that the lis pendens should be expunged: (1) that Plaintiff cannot establish the probable validity of his claim; and (2) even if Plaintiff is found to assert a real property claim of probable validity, monetary relief would adequately compensate Plaintiff for any harm allegedly suffered.

1. Argument One: Probable Validity of the Claim

A lis pendens may be ordered removed from the record title on any of the following grounds: (1) the lis pendens is improper because the complaint does not contain a “real property claim” or plaintiff cannot establish its “probable validity” by a “preponderance of the evidence”; (2) the lis pendens is proper, but a bond would provide adequate security; or (3) there was a defect in service or filing. (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-J, § 9:423.)

Unlike most other motions, the burden of proof is on the party opposing the motion to expunge. The lis pendens claimant (plaintiff) bears the burden of establishing the existence of a “real property claim” and that it is “probably valid.” (Code Civ. Proc., § 405.32; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-J, § 9:430.) Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if the court finds the underlying claim is not a “real property claim” or that its “probable validity” has not been established “by a preponderance of the evidence,” it must order the lis pendens expunged. (Code Civ. Proc., §§ 405.31, 405.32; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-J, § 9:437.)

A real property claim is any cause of action which, if meritorious, would affect title to, or the right to possession of, specific real property or the use of an easement. (Code Civ. Proc., § 405.4.) A suit to set aside a fraudulent conveyance of real property is a real property claim. (McKnight v Superior Court (1985) 170 Cal.App.3d 291; Hunting World, Inc. v Superior Court (1994) 22 Cal.App.4th 67.)

First, this action asserts a real property claim within the meaning of Code of Civil Procedure section 405.4. A "'real property claim' means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility." (Code Civ. Proc., § 405.4.) As the court explained in Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1396, "[t]he whole idea of a notice of lis pendens is to give constructive notice of the legal proceeding affecting title to a specific piece of property."

Although Defendants contend that Plaintiff's claims do not affect title to real property, the Court is not persuaded. If Plaintiff prevails, the relief sought would directly affect title to the subject property. Accordingly, the Court finds that the first requirement for maintaining a notice of pendency of action has been satisfied.

Second, the Court must determine whether Plaintiff has established the probable validity of the real property claim. (Code Civ. Proc., § 405.32.) Plaintiff bears the burden of establishing, by a preponderance of the evidence, that it is more likely than not that he will obtain a judgment on

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

the claim. Based on the evidence presented, the Court concludes that Plaintiff has met this burden.

Plaintiff has presented substantial evidence supporting the probable validity of his claims. Specifically, Plaintiff alleges that the challenged transfer of the subject property was procured through undue influence, financial elder abuse, fraud, and the abuse of a confidential relationship. The evidence submitted in support of the motion, including the timing of the transfer, the Decedent's physical condition, the nature of the relationship between the Decedent and Defendants, and the circumstances surrounding the transaction, provides sufficient support for these allegations at this stage of the proceedings.1

Probate Code section 21380 provides, in pertinent part, that:

“(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence: [¶¶] (3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period. (b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.”

According to Probate Code section 21380(a)(3), a provision of an instrument making a donative transfer to a care custodian is presumed to be the product of fraud or undue influence. “The presumption created by this section is a presumption affecting the burden of proof. As noted above, the presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.” (Prob. Code, § 21380(b).)

The Court further notes that Plaintiff has made a persuasive showing that he is likely to establish his claims. In particular, the evidence presented demonstrates that: (1) Defendants served as the Decedent's caregivers; (2) Defendants' contention that the transfer was not donative is unpersuasive; and (3) the timing of the transfer is undisputed. These facts support the application of the statutory presumption that the transfer was the product of fraud or undue influence.

In opposition, Defendants have not presented sufficient evidence or legal authority to rebut that presumption or otherwise undermine Plaintiff's showing of probable validity.

Accordingly, the Court concludes that the evidence before it satisfies the probable validity standard. Plaintiff has established, by a preponderance of the evidence, that he is more likely than not to prevail on his real property claim.

1 Several material facts are undisputed. The challenged transfer occurred within two months of the Decedent's death.

At the time of the transfer, the Decedent was suffering from Parkinson's disease and has a number of other health issues. The transfer was made to an individual who served as the Decedent's caregiver, and it is undisputed that Defendants are not related to the Decedent.

Accordingly, the statutory presumption set forth in Probate Code section 21380 applies.

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

2. Argument Two: Monetary Damages are Sufficient

Finally, the Court is not persuaded by Defendants' argument that, even if Plaintiff has established a probably valid real property claim, an award of monetary damages would adequately compensate Plaintiff for any injury suffered.

California law recognizes that real property is unique. Civil Code section 3387 provides that the breach of an agreement to transfer real property is presumed incapable of being adequately remedied by monetary compensation. In the case of a single-family residence that the party seeking specific performance intends to occupy, the presumption is conclusive. In all other cases, the statute creates a rebuttable presumption affecting the burden of proof. (Civ. Code, § 3387.)

As the court explained in Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 475, section 3387 requires the trial court to presume the inadequacy of monetary damages absent evidence sufficient to rebut that presumption.

Here, Defendants have not presented sufficient evidence or persuasive legal argument to overcome the statutory presumption. Accordingly, the Court rejects Defendants' contention that monetary damages provide an adequate remedy and concludes that this argument does not warrant expungement of the lis pendens.

For the reasons above, the Court DENIES this motion to expunge lis pendens.

D. Motion for Undertaking

Where a plaintiff resides outside California, a defendant may, at any time, move for an order requiring the plaintiff to file an undertaking to secure any award of costs and attorney fees that may ultimately be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion must establish that: (1) the plaintiff resides outside the state; and (2) there is a reasonable possibility that the moving defendant will obtain judgment in its favor. (Code Civ. Proc., § 1030, subd. (b).) The motion must also be supported by an affidavit setting forth the factual basis for the motion, including the nature and amount of the costs and attorney fees incurred and expected to be incurred. (Ibid.)

The purpose of section 1030 is to protect California defendants from the difficulty of recovering costs from out-of-state plaintiffs and to discourage the filing of unmeritorious actions by nonresident litigants. (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331.)

Here, Plaintiff has filed no opposition to Defendants' Motion for an Order Requiring Plaintiff to File an Undertaking.

1. Requirement 1: Plaintiff Resides Out of State

The first statutory requirement is satisfied. Defendants have established that Plaintiff resides outside California. The Complaint expressly alleges that Plaintiff is a resident of Florida, and

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

Plaintiff has not disputed that allegation. Accordingly, the Court finds that Defendants have satisfied the first requirement of Code of Civil Procedure section 1030.

2. Requirement 2: Reasonable Possibility of Prevailing

The Court next considers whether Defendants have demonstrated a reasonable possibility of obtaining judgment in their favor.

Section 1030 does not require a defendant to prove that the plaintiff cannot prevail. Rather, the defendant need only demonstrate that it is reasonably possible that the defendant will obtain judgment. As the court explained in Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432, a defendant "is not required to show that there was no possibility that plaintiff could win at trial, but only that it was reasonably possible that defendant would win." The motion must be supported by competent evidence. (A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Supp.2d 1143, 1147.) In evaluating the motion, the Court considers the best evidence available to assess the likely outcome of the litigation. (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914.)

Here, the request for an undertaking is unopposed. Although Plaintiff requested that the Court deny any order requiring an undertaking, Plaintiff did not address or apply the governing standard under section 1030. Thus, Plaintiff offers no reason why he should be permitted to maintain the encumbrance without securing those damages.

Moreover, the Legislature's use of the phrase "reasonable possibility" reflects its intent to impose a relatively modest burden on the moving party. The statute does not require Defendants to establish that success on the merits is probable or even more likely than not. Rather, Defendants need only present competent evidence demonstrating a reasonable possibility that they will prevail. On the record before it, the Court concludes that Defendants have made the requisite showing.

Accordingly, the Court finds that Defendants have satisfied the second requirement of Code of Civil Procedure section 1030.

3. Amount of Undertaking

Based on the Court's determination that Defendants have satisfied the standard in Code of Civil Procedure section 1030 for issuance of an undertaking, the remaining issue is the appropriate amount of the undertaking Plaintiff must post.

In setting the amount of the undertaking, the Court considers "the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding." (Code Civ. Proc., § 1030, subd. (b).)

Defendants request that Plaintiff be ordered to post an undertaking of no less than $43,434.90. In support, Defendants represent that they have incurred approximately $1,184.90 in costs to date, anticipate approximately $18,000 in additional discovery-related costs through the conclusion of

2025CUNP037994: THOMAS C. KURT, et al. vs MICHELLE BELLINI, et al.

the litigation, and estimate $24,250 in cost-of-proof expenses. Based on these projections, Defendants contend that an undertaking of approximately $43,434.90 is warranted.

The Court is not persuaded that the requested amount is reasonably supported. While the Court acknowledges that Defendants will likely incur additional costs as this matter proceeds, several of the projected categories appear speculative or overstated. In particular, the estimated cost-ofproof expenses are not supported by a sufficiently concrete factual basis to justify their inclusion in the requested undertaking. Likewise, the projected discovery costs exceed what the present record reasonably demonstrates will be incurred.

Balancing the evidence presented with the statutory purpose of section 1030, which is to secure a defendant's reasonably anticipated recoverable costs without imposing an excessive financial burden, the Court concludes that an undertaking in the amount of $15,000 adequately protects Defendants' interests. Accordingly, Plaintiff is ordered to post an undertaking in the amount of $15,000.

Plaintiff shall file the undertaking no later than 30 days after service of the Court's order.

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