Capri Mobile Villa LLC v. City of Petaluma

Kerston lived in the Subject Property for seven years prior to Plaintiffs’ lease and were therefore aware of the substandard conditions of the property, including an active rodent infestation, mold contamination, broken and inoperable doors, non-functioning locks and deadbolts, and a cockroach infestation.

II. Lis Pendens

A lis pendens may be ordered expunged if the complaint does not contain a “real property claim” (CCP § 405.31) or plaintiff cannot establish its “probable validity” by a “preponderance of the evidence.” (CCP § 405.32). Unlike most other motions, the burden of proof is on the party opposing the motion to expunge. The lis pendens claimant (Plaintiffs) bears the burden of establishing the existence of a “real property claim” and that it is “probably valid.” (CCP § 405.32.)

III. Notice of Motion and Lack of Opposition

Defendant has filed proof of service showing service of the motion on Plaintiffs. Plaintiffs have not filed opposition. Therefore, they have not shown that the real property claim against Defendant is probably valid. As such, this motion must be granted.

IV. Sanctions

Defendant requests attorney’s fees in the amount of $5,000 pursuant to Code of Civil Procedure section 405.38. That section provides: “The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (CCP section 405.38.)

Here, Defendant is self-represented and did not incur any attorney fees. Defendant’s declaration does not describe any costs incurred besides his time spent on this motion, which is not compensable. In addition, Defendant was granted a fee waiver for court costs and fees and thus did not incur the expense of a filing fee for this motion. As no compensable expenses have been shown to have been incurred on this motion, sanctions are denied.