Case Number: BC590520??? Hearing Date: April 27, 2016??? Dept: 32
TOMMY DORSEY, et al.,
ANTOINE KEANE, et al.,
Case No.: BC590520
Hearing Date: April 27, 2016
[TENTATIVE] ORDER RE:
MOTION TO EXPUNGE LIS PENDENS
Defendants Neal L. Horn, M.D. (?Horn?) and Tonka Investment Services, Limited Partnership, LLP (?Tonka?) (collectively ?Defendants?) have yet to be served with process. Defendants Horn and Tonka specially appear to move for an order expunging lis pendens on the real property known as 3124 Lincoln Avenue, Altadena, CA 91101 (?Subject Property?).
When a motion to expunge a lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a real-property claim, and to show the probable validity of the claim based upon a preponderance of evidence. (CCP ?? 405.32, 405.31, 405.30; Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal. App. 4th 314, 319.)
?[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.? (CCP ? 405.32.)
In the motion, Defendants contend that Plaintiffs conveyed the Subject Property to Keane Corporation (?Keane?) on December 27, 2012. Keane executed a promissory note and deed of trust secured by the Subject Property with Defendants as lenders on February 24, 2014. Keane failed to make timely repayments to Defendants, resulting in foreclosure, upon which Defendants became the rightful owners of the Subject Property. Defendants contend that Plaintiffs have no claim to the Subject Property.
Plaintiffs do not oppose the motion. As such, Plaintiffs fail to carry their burden to show that the complaint alleges a real-property claim or to show the probable validity of their claim. Accordingly, the motion is granted.
Pursuant to CCP ? 405.38, the Court shall award reasonable attorney?s fees and costs to the prevailing party on a motion to expunge lis pendens, ?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.? Given Plaintiffs? failure to oppose the motion, the Court cannot conclude that Plaintiffs acted with substantial justification. Defendants request $3,500 in attorneys? fees based on ten hours drafting the motion, and four hours to attend the hearing on the motion, at a rate of $250 per hour; plus the $60 filing fee. (Weber Decl.) The Court finds this amount to be unreasonable considering that the motion is only eight pages in length, and the only evidence submitted in support of the motion are two declarations. Accordingly, the Court reduces the attorneys? fees award to $2,000.
The motion is GRANTED.
The request for attorneys? fees and costs is GRANTED in the amount of $2,060.