Garces v. Richard Lerner as Trustee of the Ray Lerner Irrevocable Trust, et al.
30-2016-00856493
Defendants?, Richard Lerner, Gloria Lerner, Randy Lessard and Brandon Lessard, as Trustees of the Ray Lerner Irrevocable Trust; Lerner Realty, L.P.; and Richard Lerner?s Motion to Expunge Notice of Pendency of Action is granted.
Courts shall order a notice of pendency of action, or lis pendens, expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.? (Code Civ. Proc., ? 405.31.)? In making the determination as to whether a real property claim is being asserted, the court must engage in a demurrer-like analysis.? (Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 808-809.)? Plaintiff Nicholas Garces? Complaint states no real property cause of action.? (Code Civ. Proc., ? 405.31.)? Further, even if he did, Plaintiff has not produced evidence that he will prevail on a real property cause of action. (Code Civ. Proc., ? 405.32.)
This is a dispute about attorney?s fees Plaintiff claims he is owed for successfully locating and foreclosing upon a judgment debtor?s real property.? Defendants have refused to pay the fees claimed to be owed under a written fee agreement [?Agreement?].? Plaintiff asserts that he is entitled to a one-third ownership interest in the real property, the amount of his contingent fee.? The Agreement is not attached to the Complaint, but has been put into evidence by both sides in connection with this Motion.? This Agreement does not purport to give Plaintiff any interest in the real property in issue, or in any other property acquired to enforce the judgments.? The Agreement provides that Plaintiff?s fee is a contingent one based on the value of what was collected.? It does not evidence an intent that Plaintiff would have an actual interest in any property actually acquired, whether real, personal, or intangible.
As such, if Plaintiff has any interest in the real property, it is an equitable interest.? Such an interest is insufficient to support a claim for quiet title in the face of defendants? admitted legal title.? (Warren v. Merrill (2006) 143 Cal.App.4th 96, 113-114.)
Defendants? request for attorney?s fees is granted.? The Court awards Defendants $3,088 in reasonable attorney?s fees and costs.? (Code Civ. Proc., ? 405.38.)
Defendants shall give notice of the ruling.