Anabi Real Estate Development, LLC vs. DiMaggio

Plaintiffs allege that the DiMaggio Defendants obtained money from them through false statements which induced Plaintiffs to enter

into contracts and advance significant sums for purposes of performing services, purchasing equipment, materials, and supplies, and paying for fees expenses, and subcontractors. The DiMaggio Defendants abandoned all work before completing Plaintiffs’ respective projects and failed to deliver the equipment, supplies, materials, and other items for which they had been paid. Plaintiffs further allege, upon information and belief, that the DiMaggio Defendants misappropriated the funds advanced by Plaintiffs to pay, in whole or in part, for real estate and improvements for their own personal uses and investments. Plaintiffs seek, among other things, a constructive trust for their benefit over properties owned by the DiMaggio Defendants.

“A constructive trust is an equitable remedy that compels a wrongdoer—one who has property or proceeds to which he is not justly entitled—to transfer same to its rightful owner.” (Shoker, 81 Cal.App.5th at p. 278.) “The case law distinguishes between two subtypes of constructive trust claims. First, there are constructive trust claims that are akin to fraudulent conveyance claims because they seek a constructive trust on real property that was itself wrongfully taken and, if successful on the merits, plaintiffs would regain title to or possession of the same property.

On the other hand, there are claims seeking a constructive trust or equitable lien on different property, merely as a means to secure collection of a debt.” (Id. at pp. 282- 283.) “ ‘[A]llegations of equitable remedies, even if colorable, will not support a lis pendens if, ultimately, those allegations act only as a collateral means to collect money damages.’ ” (Id. at p. 279.)

In Shoker, the plaintiffs alleged that the defendants obtained title to ten rental properties that had been owned by the plaintiffs pursuant to an investment scheme. Because the plaintiffs’ causes of action alleged that the properties had been wrongfully acquired via a conspiracy and, if meritorious, they would affect title to that real property, the court held that their claims

fell squarely within the plain language of the statute. (Id. at p. 282.)

Here, Plaintiffs are not alleging that the DiMaggio Defendants wrongfully obtained any of the real property from Plaintiffs, as the plaintiffs in Shoker alleged. Instead, they are alleging that the DiMaggio Defendants misappropriated funds paid by Plaintiffs for certain services and goods and, upon information and belief, used those funds to pay for some or all of the real property and/or for other personal uses. These allegations demonstrate that Plaintiffs’ claims of a constructive trust over the real property is being used merely as a means to secure the collection of debts under the parties’ various agreements. If Plaintiffs prevail on their claims, title to the real property would not be affected. Therefore, the Court finds that Plaintiffs’ pleading does not include a real property claim.

Notably, Plaintiffs do not allege what information has led them to believe that the DiMaggio Defendants misappropriated funds to pay for the real estate. Thus, their allegations made on information and belief are not proper. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158.) Further, even assuming a real property claim exists, on a motion to expunge a lis pendens, it is Plaintiffs’ burden to establish by a preponderance of the evidence the probable validity of a real property claim. (Code Civ.

Proc., § 405.30.) Plaintiffs have submitted evidence showing when the real properties were acquired by the DiMaggio Defendants and that Plaintiffs paid money for invoices submitted by DiMaggio Maintenance, Inc. for work, materials, and/or equipment that was never delivered. None of this evidence suggests, let alone shows by a preponderance of the evidence, that money received by DiMaggio Maintenance, Inc. was used to purchase the subject real property. Plaintiffs have failed to meet their burden here.

In light of all the above, the Motion to Expunge is GRANTED.

The DiMaggio Defendants are entitled to reasonable attorney’s fees and costs of making the motion unless the Court finds that Plaintiffs acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust. (Code Civ. Proc., § 405.38.) Plaintiffs argue they have acted with substantial justification even though they are presently unable to complete the tracing of dollars. The Court disagrees. Plaintiffs have presented virtually no evidence or information in support of their allegations regarding the real property. Thus, the Court finds that Plaintiffs have not acted with substantial justification. However, the Court finds the DiMaggio Defendants’ request to be inflated. The DiMaggio Defendants are awarded attorney’s fees and costs against Plaintiffs, jointly and severally, in the total amount of $4,500.00.

The Case Management Conference is continued to June 18, 2026 at 1:30 p.m.

Moving party to give notice. 108 Ally Bank vs. Carmona, 25-01531431

Plaintiff Ally Bank (“Plaintiff”) applies to the Court for a writ of possession against defendant Alejandro S. Carmona (“Defendant”) regarding the subject 2021 Ford F-250 motor vehicle, Vehicle Identification No. 1FT7W2BT4MED43449.

Prior to a hearing on a noticed application for writ of possession, a defendant shall be served with a copy of the summons and complaint, notice of application and hearing, and a copy of the application and any supporting affidavits. (Code Civ. Proc., § 512.030(a).) If the defendant has not appeared, the notice and other papers must be personally served. (Id., § 512.030(b).) Otherwise, written notice must be given. (Id., § 1005(a)(2).)

Here, there is no proof of service showing that Defendant has been served with the summons and complaint, notice of application, or the application and supporting declaration. Thus, the hearing on Plaintiff’s application is CONTINUED to June 25, 2026 at 1:30 p.m. The Case Management Conference is also continued to June 25, 2026 at 1:30 p.m.