Motion to Expunge Lis Pendens
First Amended Complaint about 3 1⁄2 months after filing the Complaint. (See id., ¶ 9.)
When Defendant refused to stipulate to amend the original Complaint, Plaintiff then moved to amend about 5 months after filing the original Complaint. (See ROA #2, #33.)
Defendant contends that Defendant will be prejudiced by the amendment because some discovery has been completed and may need to be redone in light of the amendment.
However, this is an issue that arises any time there is an amendment to the pleadings. It is not the type of undue prejudice sufficient to overcome the policy of liberality in allowing amendments, even up to and during trial.
Further, trial is not set until March 15, 2027, so that all parties will have sufficient time to conduct discovery and prepare for trial.
Defendant also argues that the amendment is futile because the statute of limitations has run on Patricia Grace’s claims.
Plaintiff responds that the added claims will relate back to the original Complaint.
While Defendant disputes this, “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Thus, given the policy of liberality in allowing amendment of pleadings, the fact that the amendment will not change the basic facts or theory of the case, and the lack of prejudice to Defendant, the court will grant the motion for leave to amend.
Plaintiff shall give notice of this ruling.
8 Solter vs. Capsavage Motion to Expunge Lis Pendens
Cross-Complainants Sigthora V. Solter’s and Shirley Capsavage’s Motion for an Order
30-2023-01346312 Expunging the Recorded Notice of Pendency of Action (Lis Pendens) Recorded on November 20, 2023 Pursuant to CCP 405.30 et seq. is GRANTED.
Plaintiff and Cross-Defendant Frederik Solter is ORDERED to pay Cross-Complainants Sigthora V. Solter and Shirley Capsavage reasonable attorney’s fees in the amount of $1,750 (5 hours x $350 per hour) within 30 days of service of the notice of ruling.
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Cross-Complainants Sigthora V. Solter and Shirley Capsavage move to expunge the Notice of Pendency of Action recorded on November 20, 2023 (Lis Pendens) and for an award of attorney’s fees in the amount of $3,850.
Expunging Lis Pendens
The Civil Procedure Code contains procedures to expunge Lis Pendens.
Specifically, Civil Procedure Code section 405.30 states that:
At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice . . . .
The party seeking to expunge the lis pendens may file evidence or declarations with the motion, or “[t]he court may permit evidence to be received in the form of oral testimony.” (Ibid.) The court also “may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice.” (Ibid.)
The court shall grant a motion to expunge if either: (1) the pleading upon which the lis pendens is based does not contain a real property claim; or (2) the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Civil Proc. Code, §§ 405.31, 405.32.)
The court may not order that an undertaking be
given as a condition of expunging the notice “where the court finds the pleading does not contain a real property claim” or “if the court finds the claimant has not established the probable validity of the real property claim.” (Civil Proc. Code, §§ 405.31, 405.32.)
Where the court finds that the real property claim has probable validity, “but [that] adequate relief can be secured to the claimant by the giving of an undertaking,” then the court shall grant the expungement order, “conditioned upon the giving of the undertaking of such nature and in such amount as will indemnify the claimant for all damages proximately resulting from the expungement which the claimant may incur if the claimant prevails upon the real property claim.” (Code Civ. Proc., § 405.33; see Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 651.)
The burden of proof rests with the party responsible for filing the lis pendens. (See Amalgamated Bank v. Super. Court (2007) 149 Cal.App.4th 1003, 1007; Shah v. McMahon (2007) 148 Cal.App.4th 526, 529.)
Here, Plaintiff and Cross-Defendant Frederik Solter filed a Notice of Pendency of Action (Lis Pendens) in this matter on November 20, 2023.
Here, Cross-Complainants have established that on July 15, 2025, Plaintiff/Cross-Defendant dismissed the entire complaint upon which the Lis Pendens was based. (See ROA #120.)
The matter then proceeded to trial on the Cross- Complainant’s Cross-Complaint only and Cross- Complainants received a judgment in their favor. (See ROA #217.)
Plaintiff/Cross-Defendant has the burden of establishing that the pleading upon which the Lis Pendens is based contains a real property claim and that the preponderance of the evidence shows the probable validity of the real property claim.
Plaintiff/Cross-Defendant failed to file an opposition or respond to the motion. Thus, he has waived any arguments regarding this issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior
Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)
In any case, Plaintiff/Cross-Defendant cannot meet his burden because he has dismissed his Complaint and Cross-Complainants obtained a judgment on the Cross-Complaint.
Therefore, the court will grant the motion to expunge.
Attorneys’ Fees
Civil Procedure Code section 405.38 provides:
The court shall direct that the party prevailing on any motion [to expunge or record lis pendens] 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.
(Civil Proc. Code, § 405.38.)
“This is the same standard applicable to rulings on discovery motions.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:463; see Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1023, fn. 13.)
As the Court of Appeal has explained:
Section 405.38 changed the law by requiring (as opposed to merely authorizing) a court to award attorney’s fees and costs to the party prevailing on a motion to expunge, unless the other party acted with substantial justification or other circumstances would make such an award unjust. The Legislature intended these revisions to discourage abuse and make it easier to remove a recorded lis pendens before trial.
(Shoker v. Superior Court of Alameda County (2022) 81 Cal.App.5th 271, 280–281, italics original; see J & A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 42, [“The purpose
underlying section 405.38 is to curtail misuse of the lis pendens procedure.”].)
As noted above, Plaintiff/Cross-Defendant failed to file an opposition or respond to the motion and therefore, has not shown that he acted with substantial justification or that other circumstances make the imposition of attorney’s fees unjust.
However, Cross-Complainants’ request for attorney’s fees includes time for reviewing the opposition and preparing a reply. Cross- Complainants’ Counsel did not have to engage in these tasks as Plaintiff/Cross-Defendant did not file an opposition.
The court will reduce the amount of attorney’s fees accordingly.
Cross-Complainants shall give notice of this ruling.
9 Kim vs. Williams Motion for Summary Judgment and/or Summary Adjudication
30-2023-01317262 There is no written tentative ruling at this time. The court will hear from the parties or their counsel at hearing on this matter.
10 Sunday vs. Kazweeny Demurrers
Defendant Lightspeed Escrow, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint, Code of Civil 30-2025-01476760 Procedure § 430.41 is OVERRULED as to the 4th Cause of Action, and SUSTAINED with 15 days leave to amend as to the 1st, 2nd, 3rd, 5th, 6th, and 7th Causes of Action.
Defendants Ahmed Kazweeny’s and Reeland Investments LLC’s Demurrer to Plaintiffs’ First [sic] Complaint, Code of Civil Procedure § 430.41 is OVERRULED as to the 1st and 4th Causes of Action, and SUSTAINED with 15 days leave to amend as to the 2nd, 3rd, 5th, 6th, and 7th Causes of Action.
If Plaintiffs Karen Sunday & Associates, Inc. and Karen Sunday do not amend the First Amended