The Motion to Set Bond Amount to Maintain Lis Pendens of Defendants, Bruce Elieff, Kathy Elieff and 4627 Camden, LLC, is denied.
Plaintiff?s Request for Judicial Notice is granted.? Plaintiff?s Evidentiary Objections to the Declaration of Daniel S. Miller are sustained. ?Defendants? Request for Judicial Notice is granted.
On 2/1/13, the court stayed this case pending the outcome of two other cases, one of which has been resolved on appeal, the other of which is still pending.? The court did not lift the stay or grant permission for Defendants to file the instant motion but instead, at Defendants? request, restored to its calendar Defendants? previously-filed Motion to Expunge Lis Pendens.? Rather than provide supplemental briefing on the Motion to Expunge Lis Pendens as authorized, Defendants withdrew that motion and filed the instant one.? Nevertheless, because the motions are related, the court exercises its discretion to hear the instant motion.
CCP ? 405.34 authorizes the instant motion but provides little guidance as to the burden the moving party must meet to have the motion granted.? The Code Comment, however, states that decisions regarding an undertaking requirement are to be governed by normally applicable equitable principles.? The Code Comment under CCP ? 405.45 states, in relevant part:
- ?This section continues the court’s authority to order the claimant to give an undertaking, but allows the court to order an undertaking on motion independent of a motion to expunge. This separation of motion to expunge from motion to require undertaking serves two purposes. First, it brings lis pendens undertaking procedures into line with provisional remedy practice generally, in which the party receiving the provisional relief typically is required to provide an undertaking. Second, the former inclusion of the undertaking authority within the provisions dealing with expungement has lead [sic] some courts to regard an undertaking as an alternative to expungement. CCP 405.31 and CCP 405.32 now make clear that a lis pendens must be expunged if the claimant cannot meet the statutory tests. This section provides the court with authority to require an undertaking when appropriate even if the claimant does meet the statutory tests. Decisions regarding an undertaking requirement are to be governed by normally applicable equitable principles.
Here, Defendants failed to submit any declaration from the moving parties themselves, specifically Defendant, Bruce Elieff, attesting to any harm he may have incurred as a result of the lis pendens being in place, that he has tried to do workouts with lenders but failed because of the lis pendens, that the lis pendens have any negative effect on the ability to sell the properties or that the amounts on Tom Rollins? spreadsheet were actual expenses incurred, as opposed to expenses that are being paid or will be paid.? Further, trial in the action before Judge Andler is scheduled for 10/17/16, only five months from now.? Defendants have not provided any evidence they will be harmed between now and then if the court refuses an undertaking, nor have they explained why there now exists an urgency for an undertaking when the lis pendens have been recorded since this case began in August, 2012.
The case remains stayed.