Nov 23, 2014


TUESDAY, NOVEMBER 18, 2014 - 8:30 a.m.

COURTROOM 19 –Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403


Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call CourtCall directly at (888) 882-6878.

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, NOVEMBER 17, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-251043 Bank of New York v. Fields:

            The hearing on Defendant’s Motion for Summary Judgment has been dropped from calendar as moot.  Dismissals of Complaint and Cross-Complaint have been filed.


2.  SCV-254496 Beeken v. Cal-Bay Mortgage:

            This is on calendar for Defendant Select Portfolio Servicing, Inc’s (SPS) demurrer to the First Amended Complaint.  SPS contends that the First Amended Complaint (FAC) fails to allege any facts that it played any role in the violation of the HOBR alleged in the FAC.  SPS further argues that the FAC is fatally uncertain, as SPS cannot determine what claims are being made against it.

            The Plaintiffs oppose, arguing that the transfer of the servicing rights to SPS, and therefore the control over the foreclosure process, necessarily requires that SPS be subject to this court’s jurisdiction in the event an injunction is issued.  The Plaintiffs, in the alternative, seek leave to amend if the instant demurrer is sustained.

            SPS’s request for judicial notice is granted.

            SPS’s demurrer to the FAC is well-taken.  The FAC only alleges that SPS received an assignment of the servicing rights from Defendant Chase – nothing else.  The FAC does not allege that the violation is ongoing, or that SPS was acting in concert with Chase with respect to the alleged violation.  (See FAC 16)

            Accordingly, SPS’s demurrer to the FAC is sustained with leave to amend.  SPS shall draft an order consistent with this ruling.

3.  SCV-255309 Voight v. Garrett Hardware:

            This is on calendar for Plaintiff’s demurrer to the First Amended Answer (FAA). The Plaintiff has demurred to the First, Fourth, Fifth, and Seventh through Nineteenth Affirmative defenses. The Plaintiff contends that the subject affirmative defenses, as pled, are conclusory and fail to allege facts to support the essential elements.

The Defendant opposes, arguing that the FAA sufficiently alleges the affirmative defenses. Further, the Defendant contends that the CCP does not authorize demurrers to specific affirmative defenses—but only to the answer as a whole. (Citing South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725.)  The Defendant further argues that each of the affirmative defenses are properly pled.

The Defendant’s contention that individual affirmative defenses are not subject to demurrer is incorrect. CCP § 430.50(b) provides: “A demurrer to an answer may be taken to the whole answer or to any one or more of the several defenses set up in the answer.” (CCP § 430.50(b)[emphasis added].) The Defendant’s reliance on South Shore Land Co., supra, is mistaken. That case stands for the proposition that when a general demurrer to an answer is made, a single well-pled defense defeats the demurrer. Here, the Plaintiff has not demurred to the answer as a whole, and therefore South Shore Land Co., supra, is inapplicable for the proposition for which the Defendant has cited it.

First Affirmative Defense

The Plaintiff suggests that the Defendant has not identified how the Complaint fails to allege facts to state a claim. Here, the Defendant’s general denial negates each of the facts alleged by the Plaintiff, which in turn supports the affirmative defense that the Complaint is devoid of facts to support the causes of action as pled. (See Miller & Lux, supra, at 600.) The Plaintiff’s demurrer to this defense is overruled.

Fourth Affirmative Defense

Plaintiff contends that the Fourth Affirmative Defense for offset is improperly pled—in that it does not specify what amounts are owed, and how the Defendant is entitled thereto. Here, the FAA alleges that the Plaintiff, or persons similarly situated, owes the Defendant money. While certainly not an exhaustive recitation of the facts, it alleges enough to demonstrate a possible entitlement to an offset. The Plaintiff’s demurrer to this defense is overruled.

Fifth Affirmative Defense

The Defendant contends in this defense that the Plaintiff’s claims are barred by the doctrines of res judicata and/or collateral estoppel. The FAA is completely devoid of any facts that support this affirmative defense. Further, this affirmative defense is actually two separate defenses that are improperly conflated. (See CCP § 431.30(g)[ affirmative defenses must be separately stated; and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished”] ; and  Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App.4th 1791, 1805.) The Plaintiff’s demurrer to this defense is sustained with leave to amend.

Seventh Affirmative Defense

In this defense the FAA contends that the class action is improper because the class members waived their rights in arbitration agreements. The Plaintiff points out that this defense is essentially a waiver by contract, and the FAA fails to allege the necessary elements of a contract, or waiver. The Plaintiff’s demurrer is well-taken. The FAA fails to adequately plead the terms of the agreements alleged to have waived the rights of the Plaintiff, and whether said agreement were written, oral, or implied. (See e.g. Otworth v. South. Pac. Trans. Co. (1985) 166 Cal.App.3d 455, 458-459.) The Plaintiff’s demurrer to this defense is sustained with leave to amend.

Eighth Affirmative Defense

In this defense the FAA alleges that the Plaintiff’s action is barred for failure to utilize the Defendant’s procedures. The Plaintiff contends that there is no such affirmative defense as “avoidable consequences.” Under California law, whether the defendant's conduct was intentional or negligent, innocent or malicious, a plaintiff injured by the defendant's wrongful act is bound “to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part.”(Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 844; accord, Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460.) This requirement is known as mitigation or minimization of damages and, especially in the tort context, as the “ ‘avoidable consequences' doctrine.” (Hunter v. Croysdill (1959) 169 Cal.App.2d 307, 318; accord, Green v. Smith (1968) 261 Cal.App.2d 392, 396, (“wrongdoer is not required to compensate the injured party for damages which are avoidable by reasonable effort on the latter's part”); and State Dep't of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042–48.) Here, the FAA alleges that the Defendant had a “procedure” in place that would have corrected the “wage issues.” This is sufficient to support the affirmative defense. The Plaintiff’s demurrer to this defense is overruled.

Ninth Affirmative Defense

This defense contends that the Plaintiff waived her rights by refusing to use the Defendant’s “procedure” to correct the “wage issues.”  The Plaintiff contends that these allegations are insufficient to establish a waiver defense.

“Waiver is the intentional relinquishment of a known right with knowledge of the facts.” (McDermott v. Superior Court (1972) 6 Cal.3d 693, 698 n.3.) The party alleged to have waived a right must have had both knowledge of the existing right and an intent to waive or forego it. (See Jones v. Brown (1970) 13 Cal.App.3d 513, 519 (“the valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived”) This knowledge of the facts is a necessary element of an effective waiver. (Lunardi v. Great–West Life Assurance Co. (1995) 37 Cal.App.4th 807, 824.)

Here, the FAA fails to properly allege a knowing waiver. The Plaintiff’s demurrer to this defense is sustained with leave to amend.

Tenth Affirmative Defense

The FAA alleges that the Plaintiff consented to the breach of  contract by failing to use its “procedure.” The Plaintiff argues that this defense is uncertain and unintelligible. The Plaintiff’s demurrer is well-taken. This affirmative defense provides no factual allegations to support the defense of “consent.” Further, the defense is uncertain. The Plaintiff’s demurrer to this defense is sustained with leave to amend.

Eleventh Affirmative Defense

This defense asserts that the Defendant’s acts were authorized by law, and therefore no in violation of BP § 17200. The Plaintiff demurs, noting that this is not an affirmative defense alleging “new matter” but rather a denial of the premise on which the Sixth Cause of action for unfair business practices is grounded. The Plaintiff’s demurrer should be sustained. This affirmative defense is simply a denial of the Plaintiff’s allegations, and presents no new matter. (See e.g. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383–384 [““What is put in issue by a denial is limited to the allegations of the complaint ... A defense in the nature of ‘yes, those allegations are true, but ... ’ is not put in issue by the denial.''].) The Plaintiff’s demurrer to this defense is sustained without leave to amend.

Twelfth and Thirteenth Affirmative Defenses

These affirmative defenses deny the class allegations. As with the eleventh affirmative defense, these are merely denial of the allegations in the complaint and are not properly alleged as affirmative defenses. (See FPI Development, supra.) The Plaintiff’s demurrer to these defenses is sustained without leave to amend.

Fourteenth (1) Affirmative Defense

This Affirmative defense is simply a denial of the Plaintiff’s unfair business practices allegation, and does not properly allege an affirmative defense. The Plaintiff’s demurrer to this defense is sustained without leave to amend.

Fourteenth (2) Affirmative Defense

This purported defense alleges that the Plaintiff is not entitled to equitable relief because there are sufficient remedies at law. As contended by the Plaintiff, this is not an affirmative defense, but rather legal argument based on one seeking equitable relief. This defense presents no new matter, and therefore is improperly pled. The Plaintiff’s demurrer to this defense is sustained without leave to amend.

Fifteenth Affirmative Defense

This defense contends that the Defendant’s use of “rounding” was lawful and authorized by the applicable labor statutes and regulations, and therefore the Plaintiff’s wage claims are not viable. This defense does present new matter, as it would avoid liability under some of the causes of action (note that the affirmative defense itself does not indicate to which causes of action this defense pertains). (See CCP § 431.30(g); Walsh v. West Valley Mission Comm. College Dist. (1998) 66 Cal.App.4th 1532, 1546.) Accordingly, this defense is uncertain, and the demurrer is sustained with leave to amend.

Sixteenth through Nineteenth Affirmative Defenses

These “defenses” range from denials of the underlying liability (Sixteenth), to a catch-all intended to act as a place holder for additional affirmative defenses (Nineteenth). None of these defenses are properly pled as affirmative defenses, and as such the demurrer is well-taken. The Plaintiff’s demurrer to these defenses is sustained without leave to amend.

Accordingly, the Plaintiff’s demurrer to the answer is overruled as to First, Fourth, and Eighth Affirmative Defenses; the demurrer to the Fifth, Seventh, Ninth, Tenth, and Fifteenth Affirmative Defenses is sustained with leave to amend; the demurrer as to the Eleventh, Twelfth, Thirteenth, Fourteenth (both), and Sixteenth through Nineteenth Affirmative Defenses is sustained without leave to amend. The Plaintiff shall draft an order consistent with this ruling.


4.  MCV-226800 Creditors Trade v. Platinum Performance:

            Plaintiff's Motion to Appoint Receiver to sell the Defendants’ liquor license is GRANTED.  The Plaintiff is to appear to discuss the amount of the undertaking to be required.

The Plaintiff is to draft an appropriate order for the court’s signature.


5.  SCV-247137 Capri Creek v. Etter & Sons:

            AAA ENERGY

This is on calendar for Defendant Defendant/Cross-Complainant/Cross-Defendant AAA Energy Systems, Inc. (AAA) motion for summary judgment, or in the alternative summary adjudication, the Plaintiff’s Second Amended Complaint (SAC). AAA contends that the Plaintiff’s claims in the SAC are barred by the relevant statutes of limitations. AAA argues that there are two potential accrual dates for the Plaintiff’s claims against AAA, one based on the contract documents (October 9, 2004), and one based on the discovery rule (April 2, 2006).  AAA contends that under either of these accrual dates the Plaintiff’s claims are untimely, and it should be granted summary judgment. Alternatively, AAA seeks summary adjudication of each of the three causes of action. AAA argues that the first cause of action for negligence is untimely. AAA also argues that the second cause of action for breach of third party beneficiary contract fails as a matter of law, contending that the Plaintiff’s claim for indemnity under AAA’s subcontract language pertains to third party claims—not the Plaintiff’s first party claim.

The Plaintiff opposes AAA motion. Plaintiff objects to AAA motion, arguing that this is AAA’s second motion for summary judgment, and that AAA does not establish that it is based on “newly discovered facts.” The plaintiff refutes AAA’s contractual theory of the accrual date, contending that AAA is relying on the wrong version of the AIA A201 General Conditions. Further, the Plaintiff argues that AAA is cherry picking contractual terms, and ignoring the applicable clauses that undermine its position.  The Plaintiff further disputes AAA’s theory regarding an accrual date based on the discovery rule. The Plaintiff contends that there are several material facts in dispute with respect to whether the Plaintiff engaged in the requisite diligence to uncover the source of the water intrusion.

Contractual Accrual Date

Relying on the recent case of Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249, AAA contends that AIA A201 general conditions, specifically article abrogate the delayed discovery date that the Plaintiff relies on.

There is no doubt that Brisbane would control here if it were undisputed that Art. was applicable to AAA. Here, however, there are facts in dispute with respect to whether the was incorporated into the agreement with AAA, or whether that provision was deleted altogether by the Plaintiff with respect to both J.M. Hershey and AAA as a subcontractor. Further, the evidence with respect to what language controlled AAA’s work on the project is in dispute. AAA contends that the AIA language was incorporated by way of the Project Manual. However, what AIA terms were incorporated (and whether they were actually incorporated at all) is in dispute. AAA contends that the reference to the AIA conditions in the Project Manual incorporated the relevant article; whereas the Plaintiff points out that the AIA terms were not “physically incorporated” in to the Project Manual. This dispute is not, as AAA couches it, a question of the legal interpretation of the agreements, but rather this is a factual question as to what AIA terms (if any) were binding between AAA and the Plaintiff. Each party presents evidence that support their position, which precludes summary judgment.

Delayed Discovery

AAA argues that the undisputed evidence establishes that the Plaintiff failed to act diligently in determining the cause of the water intrusion. AAA contends that new evidence, recently produced, demonstrates that the Plaintiff did not engage in  the necessary due diligence to uncover the water intrusion, and thus cannot rely on the delayed discovery rule.

The Plaintiff objects, arguing that this is AAA’s second “bite at the apple” and that this court’s earlier finding that whether the Plaintiff acted diligently is a question for the jury.

As this court has already ruled, whether the Plaintiff acted with the requisite amount of diligence is a question for the finder of fact, and not a question (absent undisputed facts) for summary judgment. Here, in order to grant summary judgment, the court would have to weigh the credibility of the witnesses, and determine whether the Plaintiff’s representatives, with the information they were provided by their experts and professionals, should have led them to the conclusion that AAA’s work was behind the water intrusions. The bulk of AAA’s new evidence comes in the form of deposition testimony from the architect on the project, Mr. Wilcox. AAA cites to several passages where Mr. Wilcox suggests that the Plaintiff could have done additional testing in 2001 and 2005 to determine the cause of the water intrusion. AAA further relies on testimony of Mr. Karl Kardel, that he suggested that the Plaintiff perform additional destructive testing in 2005 to isolate the cause of the water infiltration. In response, the Plaintiff presents declarations from both Mr. Wilcox and Mr. Kardel wherein they both indicate that they believe that the Plaintiffs acted reasonably in believing that the source of the moisture was the control joint.

As explained previously, the question of diligence with respect to the delayed discovery is one for the jury. As the court of appeals has held: “Whether plaintiffs in fact exercised reasonable diligence in discovering the negligence of [a] defendant … is a question of fact.” (Leaf v. City of San Mateo (1980)104 Cal.App.3d 398, 409.) Here, the question of whether the Plaintiff made a “reasonable, but unsuccessful” effort to identify the negligent cause of its damages is a disputed. Resolving the conflict in the evidence of whether the Plaintiff’s representatives acted reasonably in either relying on their experts, or overruling their suggestions lies not with this court on summary judgment, but rather with the jury at trial.

 AAA has adduced evidence that the Plaintiff’s experts, Mr. Wilcox, Mr. Kardel and Mr. Bucholtz, were advising that the Plaintiff perform additional tests at the time of the so-called Bucholtz fix.” But the Plaintiff adduces evidence that the Plaintiff’s representatives believed that the acted reasonably in their investigation in light of the repair work to Unit 151.  While AAA has certainly put more evidence on the scales in its favor, the Plaintiff has presented evidence that precludes summary judgment. Likewise, AAA’s motion for summary adjudication based on the running of the statute of limitations is denied.

Breach of Third Party Beneficiary Contract

AAA also seeks summary adjudication of the Defendant’s Third Cause of Action for Breach of Third Party Beneficiary Contract. AAA contends that the indemnity language in its contract with Hershey only applies to claims made by third parties, not to “Plaintiff’s … first party claim.”

The plain language of the indemnity clause does not support AAA’s position. The indemnity provision provides for protection against not only against “any and all claims” but also against “losses and damages of any nature whatsoever…arising out of any of the work services, or materials performed or supplied by [AAA].” The indemnity is broad enough to cover the claims made by the Plaintiff here. AAA has not met its initial burden on this issue.

Accordingly, AAA’s motion for summary judgment and adjudication is denied.


This case is also on calendar for Defendant Etter & Sons motion for summary judgment, and in the alternative, summary adjudication. This motion was originally heard in Department 18 on August 28, 2013, and taken under submission. Following the recusal of Judge Shaffer, Department 19 reset the motion to be heard April 15, 2014; however Etter continued that hearing. Finally, on October 23, 2014, Etter informed the court that it would go forward with the instant motion. Additionally, on October 24, 2014, Etter filed an “Amended Notice of Motion for Summary Judgment or Summary Adjudication”  indicating that Etter is seeking summary adjudication based on CCP § 337.15 (the original motion sought summary judgment on the basis of CCP § 337.15). Further, on October 24, 2014, Etter filed a “Supplemental Points and Authorities” seeking to include additional argument to its original motion. The Plaintiff objected to both the amended notice and the supplemental points and authorities, contending that it did not provide the requisite amount of notice.

The Plaintiff’s objection is well-taken. CCP § 437c(a) requires that the “[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” Here, the amended notice and supporting papers were not served at least 75 days before the hearing date. Accordingly, the Plaintiff’s objection to the amended notice and the supplemental points and authorities is sustained.

Summary Judgment

Etter’s motion seeks summary judgment on the basis of the running of the 10 year statute of repose. (Citing CCP § 337.15.) At the time Etter filed its motion only three causes of action were pled against it. Subsequent to that filing, the Plaintiff has filed an amended complaint which has pled an additional cause of action for fraudulent concealment. A summary judgment may only be granted where it is shown that the “action has no merit or that there is no defense to the action ….” (CCP § 437c(a).) Here, the instant motion does not address the fraudulent concealment cause of action, and therefore summary judgment cannot be granted.

Motion for Summary Adjudication

Etter has, in the alternative, moved for summary adjudication of the first three causes of action on the basis that each is barred by the applicable statute of limitations.  The motion, similar to AAA’s motion, argues that the Plaintiff was on notice of Etter’s alleged negligence, and failed to fully investigate the cause of the moisture in the affected units. The Plaintiff opposed, arguing that whether it acted reasonably is question of fact for the jury.

As this court has discussed above, and in denying other motions based on this very issue, whether the Plaintiff should have discovered Etter’s alleged negligence is a question of fact—this is especially true given that there are facts in dispute on this very topic.   As such, this motion is denied.


            This is also on calendar for AAA Energy Systems’ motion to amend or clarify this court’s ruling dated August 11, 2014. AAA is concerned that this court’s recitation of the parties’ allegations, contained in the section of the order title “Factual and Procedural Background,” could be construed as findings of fact—as opposed to contentions of the parties. AAA identifies six statements that it feels should be clarified to show that they are the contentions of the parties. The motion is unopposed.

Pursuant to this court’s authority under CCP § 187, the court hereby amends the August 11, 2014 to indicate that the statements identified by AAA are not findings of facts, but rather a recitation of the contentions of the party.

AAA shall draft and order consistent with this ruling.


6.  SCV-254344 Destiny v. Siebert:

            This is on calendar for the Plaintiff’s motion for leave to file a Second Amended Complaint (SAC). No opposition has been filed. The Plaintiff seeks to file the proposed SAC to clarify his previous allegations made within the First Amended Complaint.  The Plaintiff contends that discovery responses that he has received “raise valid issues and justify an amended response.” The Plaintiff avers that this motion was not made earlier because: “Discovery responses and additional issues learned during the course of discovery in addition to ongoing discovery anomalies compel the request.”

This is the Plaintiff’s second attempt at seeking leave to file a Second Amended Complaint. The proposed complaint here, unlike the past attempt, does not seek to add the dismissed parties, and only lists Mr. Frank Siebert as a defendant. The court notes that the Plaintiff has not filed a proof of service of summons indicating that Mr. Frank Siebert has been served in this case.

In any event, the court will grant the motion for leave to file the proposed Second Amended Complaint.


7.  SCV-255927 Vineyards Management v. San Antonio Creek:

            This is on for Plaintiff’s Application for a Right to Attach Order, and Order of Issuance of Writ of Attachment. The Plaintiff has not filed a proof of service of the motion or the supporting documents.   The notice of the hearing must be served on defendant at least 16 court days before the hearing. (See CCP §§ 484.040, 1005(a)(1) & (b).) Further, the proof of service must be filed with the court clerk at least 5 court days before the hearing. (See CRC 3.1300.)

Accordingly, the Plaintiff’s motion is dropped from calendar.


8.  SCV-255939 In Re B Rubenstein:
            This is on calendar for a Petition to Transfer of Structured Settlement Payments.  Mr. Rubenstein, the proposed payee, entered into a settlement of a wrongful death case that entitled him to structured payments totaling $170,000. The structured settlement payments were to be paid to Mr. Rubenstein, in varying amounts, starting November 2014 through June 22, 2021. Mr. Rubenstein has agreed to sell his interest in those future structured settlement payments to the Petitioner for $118,000.

Mr. Rubenstein intends to use the money to purchase a car and defray college costs. He is single, with no minor dependents. The Petition satisfies the requirements of the applicable Insurance Code sections.

The Petition for Approval of Transfer of Structured Settlement Payment Rights is GRANTED.


9.  SPR-85914 Matter of Vera Violet Wunsch Trust:

            This is on calendar for Respondent’s motion to expunge lis pendens and for attorney fees. The Respondent contends that the Petitioner’s filing of a notice of pendency of action was improper as the Petition does not state a real property claim. Further, the Respondent contends that the Petitioner cannot demonstrate a probability of success on the merits. The Respondent argues that the Petition simply seeks to assert his right as a remainder beneficiary in the subject trust. Further, the Respondent argues that the Petitioner cannot, as a matter of law and contract, assert a claim to title of the real property held in the trust.

The Petitioner responds, arguing that the corpus of the trust consists solely of the real property subject to the lis pendens, and that pursuant to the terms of the trust he is entitled to a 50% distribution of the trust assets—a distribution that has been delayed. The Petitioner notes that the Respondent is seeking to sell the real property at issue, and is not confident that the funds realized by any sale will be fairly distributed.

The Respondent replies, arguing that the Petitioner is using the lis pendens as a form of a TRO to frustrate the Petitioner’s management of the trust assets. The Respondent further contends that the terms of the trust give her wide discretion to deal with the trust assets. Moreover, the Respondent points out that the Petitioner’s complaint of late distribution is suspect given that he sought to delay any distribution of the trust until after the dissolution of his marriage was complete.

The Respondent’s request for judicial notice is granted.

A lis pendens may be expunged if the party asserting the lis pendens cannot establish the complaint’s “probable validity” by a “preponderance of the evidence.” (CCP §405.4, CCP §405.31, CCP § 405.32.) Unlike most other motions, the burden of proof is on the party opposing the motion to expunge. The lis pendens claimant bears the burden of establishing the “probable validity of the real property claim.” (CCP § 405.32. )

The allegations of the complaint determine whether a “real property claim” is involved; no independent evidence is required. (Urez Corp. v. Sup.Ct. (1987) 190 Cal. App. 3d 1141, 1149.) 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. (CCP § 405.4.) 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. (CCP §§ 405.31, 405.32.) The court may not order defendant to give an undertaking before expunging an improper lis pendens. (CCP §§ 405.31, 405.32.)

Here, the Petitioner has, in his amended Petition, asserted a real property claim. However, the Petitioner has not met his burden of proof to demonstrate a probably validity of his claims. The court notes that the only “evidence” submitted by the Petitioner is a declaration from the Petitioner’s attorney which presents no evidence to support his claim that he is entitled to possession or title to the real property that is held in the trust. The court notes that the Respondent’s theory that a beneficiary of a trust has only a “potential interest” is incorrect under the circumstances presented here. (See Empire Properties v. County of Los Angeles (1996) 44 Cal.App.4th 781, 787 [upon settlor's death, revocable trust became irrevocable and “the full beneficial interests in the property transferred to” the “residual beneficiaries of the trust”].) But, that is irrelevant to the instant case because of the Respondent has simply failed to present any evidence that he will prevail on his claims. Further, the Trust itself does not provide for the distribution of real property, but rather for “net income and principle.” The power to determine income and principle is left to the sole discretion of the Trustee—in this case the Respondent.

Accordingly, the Respondent’s motion is granted, and the Respondent’s request for attorney fees is granted in the amount of $1,590. The Respondent shall draft an order consistent with this ruling.


10.  MSC-183034 Autumn Hills v. Moran:
            The hearing in this matter is continued to the Law and Motion calendar on January 27, 2015 at 8:30am in Department 19.

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