Estate of Claudia Pizarro

Case Number

22PR00602

Case Type

Hearing Date / Time

Thu, 09/14/2023 - 09:00

Nature of Proceedings

Motion: Expunge Lis Pendens

Tentative Ruling

TENTATIVE RULING:

(1)       For the reasons set forth herein, the motion of third party Debra Bandy to expunge lis pendens is granted. The notice of lis pendens recorded as document No. 2022-0051268 is ordered expunged. The court awards reasonable attorney fees and costs in favor of moving party Debra Bandy and against petitioner Carolina Pizarro in the amount of $14,579.00.

(2)       Counsel are ordered to appear at the hearing on this motion and are to be prepared to discuss whether, and to what extent, other relief may be appropriate pending disposition of the pending petition.

Background:

On December 7, 2022, petitioner Carolina Pizarro filed her petition for letters of administration and authorization to administer under the Independent Administration of Estates Act the estate of decedent Claudia Pizarro (decedent). The petition was set for hearing on February 2, 2023. (This petition is referred to herein as the “Administration Petition.”)

On December 13, 2022, petitioner recorded a notice of pending action (lis pendens) as to real property located at 2187 Lillie Avenue, Summerland (Property). (Moving Party’s Request for Judicial Notice [RJN], exhibit N.) The lis pendens identifies this probate proceeding and provide notice of an adverse claim of interest in that Property. (Ibid.) (Note: The common law term “notice of lis pendens,” frequently shortened simply to “lis pendens” is referred to by its modern term, “notice of pendency of action” in the current statute. (Code Civ. Proc., § 405.2.) The court, like the parties, use these terms interchangeably.)

On February 2, 2023, the court granted petitioner’s Administration Petition and ordered that Letters of Administration be issued upon taking the oath as required by law. (Minute Order, filed Feb. 2, 2023.)

On February 9, 2023, the court issued Letters of Administration appointing petitioner as administrator of the decedent’s estate.

On May 12, 2023, third party Debra Bandy, who asserts that she is the sole and exclusive owner of the Property, filed this motion to expunge the lis pendens. The motion was originally set for hearing on July 6, 2023. The hearing was continued to July 13 by stipulation of the parties and order of the court.

The motion is opposed by petitioner.

Prior to the original hearing date on July 13, 2023, the court posted its tentative to grant the motion to expunge (much of which is repeated in this ruling). After the court posted its tentative, petitioner filed a second petition in this matter pursuant to Probate Code section 850 (850 Petition) on July 12, which petitioner announced at the hearing of this motion on July 13. The court took the matter under submission and permitted the parties to file further briefing. The parties have filed supplemental papers.

Analysis:

(1)       Request for Judicial Notice

In support of her motion, Bandy requests that the court take judicial notice of: (RJN, exhibit A) a grant deed, dated September 29, 2021, and recorded August 23, 2019, for the Property; (exhibit B) a grant deed, dated July 23, 2019, and recorded August 23, 2019, for the Property; (exhibit C) a deed of trust, dated August 15, 2019, and recorded August 23, 2019, as to the Property; (exhibit J) an interspousal grant deed, dated September 29, 2021, and recorded October 5, 2021, as to the Property; (exhibit K) a deed of trust, dated August 15, 2019, and recorded October 5, 2021, as to the Property; and (exhibit N) the lis pendens recorded as document No. 2022-0051268. The court grants these requests for judicial notice of recorded documents. (See Evid. Code, § 452, subd. (g); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Judicial notice does not extend to the truth of matters set forth therein. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, at p. 1117.)

(2)       Real Property Claim in Administration Petition

“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. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. … The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (Code Civ. Proc., § 405.30.)

“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.” (Code Civ. Proc., § 405.31.) “ ‘If the pleading filed by the claimant does not properly plead a real property claim, the lis pendens must be expunged upon motion under CCP 405.31.’ [Citation.]” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647 (Kirkeby).)

“ ‘Real property claim’ means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Code Civ. Proc., § 405.4.)

“In making this determination, the court must engage in a demurrer-like analysis. ‘Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim.’ [Citation.] Review ‘involves only a review of the adequacy of the pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed as on a demurrer.’ [Citation.] Therefore, review of an expungement order under section 405.31 is limited to whether a real property claim has been properly pled by the claimant.” (Kirkeby, supra, 33 Cal.4th at pp. 647–648.)

“Under sections 405.2 and 405.4, subdivision (a), a lis pendens is only authorized in actions that affect ‘title to, or the right to possession of, specific real property.’ Historically, the purpose of a lis pendens was to preserve the court’s jurisdiction over property: if a party to litigation were able to transfer clear title during the litigation, the court would be unable to render an effective judgment. [Citation.] The lis pendens prevents ‘the defendant property owner from frustrating any judgment that might eventually be entered by transferring his or her interest in the property while the action was still pending.’ [Citation.] [¶] Consistent with this limited purpose, the courts have repeatedly held that a lis pendens recorded in an action that does not involve title has no effect: ‘if there is a failure to comply with [the lis pendens statute] there can be no constructive notice of the pendency of the action.’ [Citation.] As the court said in Brownlee v. Vang (1962) 206 Cal.App.2d 814 …, the complaint must ‘set forth some cause of action affecting the title or right of possession of the specific real property described in the lis pendens. When it does not do so the lis pendens becomes a nullity....’ [Citation.]” (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1860, fn. omitted.)

Until the filing of the 850 Petition, this proceeding was solely by petition for issuance of letters in a probate proceeding, i.e., the Administration Petition. “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.” (Prob. Code, § 1000, subd. (a).) “If a proceeding under this code affects the title to or the right of possession of real property, notice of the pendency of the proceeding may be filed pursuant to Title 4.5 (commencing with Section 405) of Part 2 of the Code of Civil Procedure.” (Prob. Code, § 1004.)

The Administration Petition does not provide a basis for a lis pendens. Consistent with a petition under Probate Code section 8000, subdivision (a)(1), the Administration Petition “requests that … Carolina Pizarro be appointed … administrator … and Letters issue upon qualification.” (Administration Petition, ¶ 2b(3).) The petition further requests that “full … authority be granted to administer under the Independent Administration of Estates Act” and bond not be required. (Administration Petition, ¶¶ 2c, 2d(1).) The petition includes a declaration in support of the character and estimated value of the property of the estate which explains petitioner’s asserted claim with respect to the Property. (Administration Petition, attachment 3d(4) [declaration of petitioner].) The petition, however, makes no request for any relief relating to the Property. Thus, by granting the relief expressly sought in the petition, the court appointed petitioner as administrator and ordered the issuance of letters upon qualification. The granting of the Administration Petition had no effect, intended or otherwise, on the title to the Property.

Consequently, the Administration Petition is not a petition by which title to or possession of the Property would be affected within the meaning of Probate Code section 1004. Accordingly, the Administration Petition does not state a cause or causes of action in a pleading affecting title to or possession of the Property. Thus, petitioner has not met her burden to show that the pleading on which the notice is based contains a real property claim within the meaning of Code of Civil Procedure sections 405.31 and 405.4 based upon the Administration Petition.

(3)       Effect of 850 Petition

As the court noted in its original tentative in this matter, at the time the tentative was published, there was no other petition on file. Although petitioner asserted that a petition under section 850 would be filed, in the absence of any filing, the court did not consider what effect the filing of such a petition would have on the above analysis. Because the 850 Petition was filed prior to the hearing on this motion, the initial question is whether the 850 Petition changes the above analysis.

As far as the parties’ arguments and the court’s own research can tell, there is no case law directly on point. Apart from repeating citations as to common law principles (discussed below), petitioner provides no authority that the filing of a subsequent petition can retroactively provide support for a previously recorded lis pendens. Bandy asserts that the determination can only be assessed on the state of the pleadings at the time the lis pendens was recorded, arguing that if the lis pendens was a nullity at the time of its recordation, the nullity cannot be cured. This argument depends heavily upon circumstances quite different from the present fact pattern.

Returning to first principles, a “real property claim” specifically means “the cause or causes of action in a pleading.” (Code Civ. Proc., § 405.4.) With respect to expungement, “the court shall order the notice 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.) Section 405.31 demonstrates that there needs to be a connection between a specific pleading containing a real property claim and the notice based on that specific pleading. In this case, the only pleading in existence at the time of the recording of the lis pendens was the Administration Petition. As a matter of statutory construction, therefore, the notice that is recorded can only be based upon is the Administration Petition and not upon the not-yet-extant 850 Petition. As discussed above, the Administration Petition does not contain a real property claim.

This statutory interpretation is consistent with the underlying principles behind a lis pendens. “ ‘The whole idea of a notice of lis pendens is to give constructive notice of the legal proceeding affecting title to a specific piece of property.... Thus a potential buyer of the property should be able to go to the courthouse and look up the documents (the pleadings) in the court proceeding which might affect title or possession of the real property he or she is thinking of buying or lending money on.’ Elsewhere in that decision we emphasized that the filing of a notice of lis pendens allows third parties to ‘ascertain from the pleadings the nature of any claim to specific real property.’ ” (Behniwal v. Mix (2007) 147 Cal.App.4th 621, 638, quoting Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1396.) At the time the lis pendens was recorded, and for more than six months after, any party who would go to the courthouse and look up the documents in the court proceeding which might affect title would find only the Administration Petition. As discussed above, the Administration Petition contains no request for orders affecting title to the Property and presents no procedural mechanism by which title to the Property could be adjudicated.

Similarly, in Dobbins v. Economic Gas Co. (1920) 182 Cal. 616, the California Supreme Court stated: “It is, of course, the rule that where a new cause of action is injected into a suit by the plaintiff by amendment or otherwise, a previous purchaser pendente lite from a defendant of the subject-matter of the suit is not bound by the judgment upon such new cause of action unless he is made party. The simple reason is that the introduction of the new cause of action is in effect the commencement of a new suit, and, since the purchaser bought prior to its commencement, he is not as to it a purchaser pendente lite.” (Id. at p. 627.) This rule, applying a much earlier version of the law of lis pendens, demonstrates the same notice principle behind lis pendens described in Behniwal v. Mix, supra, so that the addition of a new cause of action in a complaint would not provide constructive notice based on that new cause of action alone. This old rule also points to an interpretation of the modern statutes that would distinguish between a new cause of action (i.e., different from that existing at the time of the recording of the lis pendens) and an amendment correcting imperfections in an already-asserted but insufficiently pleaded cause of action. The 850 Petition is analogous to a new cause of action under this principle by being a different petition seeking different affirmative relief than that sought in the Administration Petition.

In the supplemental response, petitioner asserts that even if the court finds that there is no real property claim within the meaning of the lis pendens statutes, the lis pendens “does satisfy the requirements of the more general common law doctrine of lis pendens, which California lis pendens statutes have been supplemental to, not repealing of,” citing MacDermot v. Hayes (1917) 175 Cal. 95, 109 (MacDermot) and Welton v. Cook (1882) 61 Cal. 481, 482-483 (Welton). Petitioner misconstrues the effect of the current lis pendens statutes. MacDermot points out that in 1863, the then-applicable lis pendens statute applied only to actions affecting title to real property and was not applicable in cases for the mere possession of real property and so was subject to the common law of constructive notice relating to pending actions. (MacDermot, supra, 175 Cal. at p. 109; Wattson v. Dowling (1864) 26 Cal. 124, 126.) In Welton, the court addressed the problem of the effect of a lis pendens in an earlier quiet title action. (Welton, supra, 61 Cal. at pp. 485-487.) The portion cited by petitioner is a summary of one party’s argument (frequently included in old cases) and not from the opinion of the court. (Id. at pp. 482-483.) Neither case has any application here. As quoted above, current section 405.31 states clearly that the court shall order the notice expunged if the court makes appropriate findings. A requirement that the court expunge notice necessarily excludes the possibility that the lis pendens may be maintained notwithstanding such findings under common law principles. (See The Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1464–1465 [lis pendens based on Florida action not permitted by application of California lis pendens statutes and so subject to expungement].) The lis pendens statutes fully address when and how a notice of lis pendens may be recorded and maintained; however, the lis pendens statutes do not preclude forms of relief other than by recording a lis pendens (Code Civ. Proc., § 405.8).

The court therefore concludes that the 850 Petition does not alter the analysis that the motion to expunge the lis pendens should be granted because the lis pendens is based upon the Administration Petition and the Administration Petition does not contain a real property claim within the meaning of the lis pendens statutes.

(4)       Lis Pendens Based on 850 Petition

In the supplemental response, petitioner requests that, if the court determines that the lis pendens must be expunged, petitioner be given sufficient time and leave of court to file a new lis pendens or to file an ex parte application for leave to do so. While in the sur-reply Bandy objects to consideration of the 850 Petition in the context of this motion, Bandy asserts that the substantive merits of the case should be addressed to avoid the expense of a second set of motions regarding a lis pendens based upon the 850 Petition. To partially address these issues and for judicial efficiency, the court will address the 850 Petition as it relates to the lis pendens.

The 850 Petition is alleged against both Bandy and Tim Bandy (collectively, the Bandys). (850 Petition, prayer.) The 850 Petition alleges the payment of a substantial amount of decedent’s money for the construction and improvement of the Property and in mortgage payments. (850 Petition, ¶ 33.) The 850 Petition alternatively describes these payments as indicative of an ownership interest in a joint venture with the Bandys (id., ¶ 34), as an implied contract indicative of an ownership interest in the Property (id., ¶ 35), or as a basis for unjust enrichment through the Bandys’ ownership of the Property (id., ¶ 12). None of these theories constitute a real property claim under section 405.4 or are supported by sufficient evidence to show probable validity under section 405.3.

With respect to the joint venture theory, this theory does not plead a real property claim because, among other things, title would be held by the joint venture (i.e., partnership) and not by an individual joint venturer.

“ ‘Partnership’ means an association of two or more persons to carry on as coowners a business for profit ….” (Corp. Code, § 16101, subd. (a)(9).) “Whereas a partnership ordinarily involves a continuing business for an indefinite or fixed period of time, it is commonly understood that a joint venture is usually formed for a single business transaction or enterprise.” (Chambers v. Kay (2002) 29 Cal.4th 142, 151.) “A joint venture is a distinct entity virtually identical to a partnership, and capable of contracting––that is, acquiring obligations––in its own name.” (Victor Valley Transit Authority v. Workers’ Compensation Appeals Bd. (2000) 83 Cal.App.4th 1068, 1076.)

The case of North Coast Business Park v. Superior Court (1984) 158 Cal.App.3d 858 (North Coast) is illustrative of the problem here. In North Coast, a number of limited partners in a first partnership that was formed to purchase and develop a tract of land brought suit alleging that the underlying property was transferred to a second partnership (comprised of the general partners of the first partnership) for inadequate consideration in breach of the general partners’ fiduciary duties and seeking imposition of a constructive trust over the property. (Id. at pp. 859-860.) As part of that action, the plaintiff-limited partners recorded a lis pendens for the property. (Id. at p. 860.) The defendant second partnership sought to expunge the lis pendens pursuant to the prior lis pendens statutes. (Ibid.) The trial court granted the motion expunging the lis pendens but subject to the filing of a bond. (Ibid.) The defendant sought writ relief in the Court of Appeal arguing that because the action did not affect title to or right of possession of the real property, no bond should be required to expunge the lis pendens. (Ibid.)

On writ review in North Coast, the court first noted that under the then-current statutes, the action must affect title to or possession of land. (North Coast, supra, 158 Cal.App.3d at p. 860.) The court held that no real property claim was stated: “[T]he suit is not brought by the partnership entity. Rather, the plaintiffs are three individual members of the partnership who have brought suit as individuals. As such their interest is in the partnership not the land. An interest in a partnership is personal property [citation]. Just as partnership property is not available to satisfy a judgment against a limited partner in his individual capacity [citation], so individual limited partners do not have an interest in the partnership’s real property, neither title to the property nor a right of possession, that can support the filing of a lis pendens.” (Ibid.)

Both the lis pendens and partnership statutes have changed since 1984, but the principle of North Coast still applies. As in 1984, the current lis pendens statute requires a real property claim that affects title to or the right to possession of specific real property. (Code Civ. Proc., § 405.4.) More emphatically than in 1984, the currently-in-force Uniform Partnership Act of 1994 provides that “[a] partnership is an entity distinct from its partners.” (Corp. Code, § 16201.) Thus, to the extent that petitioner seeks title on a partnership theory, title would belong to the partnership and not to the petitioner. Thus, for the same reasons explained in North Coast, petitioner fails to meet her burden to show a real property claim or the probable validity of such a claim to support the lis pendens on that theory.

With respect to the unjust enrichment theory, the corresponding claim against the real property is in the nature of an equitable lien. The case of Campbell v. Superior Court (2005) 132 Cal.App.4th 904 (Campbell) is instructive.

In Campbell, the plaintiff as trustee of a trust filed a complaint against the deceased trustor’s companion alleging that the companion had exercised undue influence in persuading the trustor to expend trust money to pay for the remodeling of the companion’s house. (Campbell, supra, 132 Cal.App.4th at pp. 908-909.) The complaint requested the imposition of a constructive trust and an equitable lien as to the companion’s house and the plaintiff recorded a lis pendens against that house. (Id. at p. 908.) The companion filed a motion to expunge the lis pendens, which was granted by the trial court. (Ibid.)

On writ review, the Campbell court denied the writ on the merits. (Campbell, supra, 132 Cal.App.4th at p. 908.) In addressing the equitable lien claim, the court explained the legal basis for such a claim:

“ ‘An equitable lien is a right to subject property not in the possession of the lienor to the payment of a debt as a charge against that property. [Citation.] It may arise from a contract which reveals an intent to charge particular property with a debt or “out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings.” [Citation.] “The basis of equitable liens is variously placed on the doctrines of estoppel, or unjust enrichment, or on the principle that a person having obtained an estate of another ought not in conscience to keep it as between them; and frequently it is based on the equitable maxim that equity will deem as done that which ought to be done, or that he who seeks the aid of equity must himself do equity.” [Citation.]’ [Citation.]” (Campbell, supra, 132 Cal.App.4th at p. 912.)

The Campbell court then explained why the imposition of an equitable lien under the facts alleged did not constitute a real property claim under the lis pendens statutes:

“In his complaint, [the plaintiff] requested ‘an equitable lien against the [companion’s] House equal to the amount of the assets of the Trust used to improve the [companion’s] House in any way.’ In other words, [the plaintiff], sought an interest in [the companion’s] real property ‘for the purpose of securing a claim for money damages.’ [Citation.] As in [La Paglia v. Superior Court (1989) 215 Cal.App.3d 1322, abrogated on other grounds in Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1258, fn. 17], [the plaintiff’s] claim is not dependent upon the uniqueness of the defendant’s property in the underlying suit, and [the plaintiff] will be fully compensated for any damages he has suffered by a money judgment. We conclude such an action does not ‘affect ... title to ... specific real property’ (§ 405.4), and, therefore, does not support the recording of a lis pendens.” (Campbell, supra, 132 Cal.App.4th at p. 919.)

Here, petitioner alleges payments on the mortgage and for construction improvements on the Property. Based on these payments, petitioner claims an interest in the Property “equal to the total investment” in the Property “and any appreciation thereof since the investment was made ….” (850 Petition, prayer, ¶¶ 2, 5.) In the context of allegations that these payments were made to invest in the Property, these allegations may support a claim for restitution based upon unjust enrichment and for the imposition of an equitable lien based upon such restitution. (See Rest.3d Restitution, § 56, subd. (1)(a) [“If a defendant is unjustly enriched by a transaction in which (a) the claimant’s assets or services are applied to enhance or preserve the value of particular property to which the defendant has legal title … the claimant may be granted an equitable lien on the property in question.”].)

However, as in Campbell, a claim for imposition of an equitable lien equal to the amount of the total investment used to improve real property is not a real property claim under the lis pendens statutes. Accordingly, a claim for unjust enrichment does not under these alleged facts give rise to a real property claim to support a lis pendens.

With respect to the implied contract theory, the 850 Petition is at best ambiguous as whether it alleges a real property claim. Assuming without deciding that allegations such as “position as an owner investor with rights and ownership interests in the property” (850 Petition, ¶ 34) are sufficient to state a real property claim based upon decedent’s personal interest in the Property, the court does not find that petitioner has met her burden as to the probable validity of that real property claim.

“[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.” (Code Civ. Proc., § 405.32.) “ ‘Probable validity,’ with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” (Code Civ. Proc., § 405.3.) “The Legislature’s intent … was to make the standard on a motion to expunge a notice of lis pendens equivalent to the probable validity standard applicable under the attachment law [citation] and other provisions for pretrial judicial evaluation [citations]. [Citation.] That is, the plaintiff must ‘at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citation.]” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319–320.)

Without considering the defense of the statute of frauds and considering the evidence presented by the parties under this standard, petitioner has not met her burden as to the prima facie case for a real property claim. The parties provide contradictory descriptions of the circumstances and transactions between the decedent and the Bandys. As an oversimplified summary, petitioner infers from her observations and her documentary evidence that decedent was in business with the Bandys to maximize their profits in the project to renovate and resell the Property. The Bandys deny such a relationship and assert that the only agreement with the decedent was a Lease. Each of parties make various accusations of falsity of the others’ claims. (Note: The court has reviewed all of the evidence presented by the parties and relies only upon admissible evidence in making this ruling. However, as noted below, even if all the petitioner’s evidence for which objections have been raised is considered irrespective of admissibility, the court’s conclusions do not change.) There are multiple conflicting inferences that can be drawn from the evidence as to whether there was any other agreement between decedent and the Bandys and as to whether there is unjust enrichment in the retention of benefits conferred on the Bandys with respect to the Property. However, there is insufficient evidence for the court to infer the probable validity of a real property claim.

Legal title to the Property was first obtained by the Bandys in August 2019. (RJN, exhibit B.) The deed of trust at the time title was first acquired identifies the borrowers as the Bandys by their trust. (RJN, exhibit C.) The recorded documents show that the property was refinanced and title transferred from the Bandys to Bandy in October 2021. (RJN, exhibits A, J.) The deed of trust at the time of the refinance identified Bandy as the sole borrower. (RJN, exhibit K.) Petitioner provides evidence that decedent made mortgage payments on the Property from at least November 16, 2021, through September 16, 2022. (Pizzaro decl., ¶ 20 & exhibit C.) It can be reasonably inferred from these payments that decedent was protecting a business interest of the decedent in the Property (although this is not the only reasonable inference). But it can also be reasonably be inferred from this evidence that decedent understood the state of title to the Property and that decedent was neither an owner of the Property nor a borrower under the loan for which the Property was used as security. To the extent this business arrangement between the parties is found to exist, there is no persuasive evidence presented that this arrangement of title in Bandy was not the intent of the parties—and no persuasive evidence why this arrangement of title was not in place for business reasons benefitting both parties. Thus, while there is disputed evidence of a business relationship that may potentially support a claim for damages or restitution (whether measured by a share of the proceeds of sale of the Property, the amount invested, or otherwise), there is no persuasive evidence that such a business relationship translated to a claim of ownership of the Property by the decedent. Accordingly, the court finds that, on the evidence now presented, petitioner has not met her burden to show the probable validity of a real property claim under the 850 Petition.

The court therefore finds that petitioner has not met her burden to show the probable validity of any real property claim asserted in any proceeding now before the court. (The court makes these findings even considering all the evidence proffered by petitioner to which Bandy has objected. It is not therefore necessary to resolve specific evidentiary objections to petitioner’s evidence to resolve this motion.)

(5)       Attorney Fees

“The court shall direct that the party prevailing on any motion under this chapter 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.” (Code Civ. Proc., § 405.38.)

“In 1992, section 405.38 was revised so that the prevailing party on a motion to expunge was entitled to recover its attorney fees and cost unless specified findings were made supporting the denial of fees. [Citation.] The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (J&A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 42.) “The term prevailing party was not defined in the statute and, as a result, courts determine the prevailing party by taking a practical approach that analyzes ‘the extent to which each party has realized its litigation objectives.’ [Citation.]” (Id. at pp. 42–43.)

Here, Bandy is the prevailing party in this motion. The litigation purpose was to expunge the lis pendens where there is no claim affecting title to or possession of real property. This goal has been achieved. At the time the lis pendens was recorded, petitioner had not yet been appointed as decedent’s personal representative and was without power to act on behalf of decedent’s estate. (See Prob. Code, § 8400, subd. (a).) The only proceeding then pending before the court was the Administration Petition. Not until this court published its tentative granting Bandy’s motion to expunge was the 850 Petition filed and further briefing required by the court on the effect of such filing. Even considering the 850 Petition, Bandy has achieved her litigation objectives as to this motion to expunge.

In response to the sur-reply of Bandy, petitioner argues that there was substantial justification for the filing of the lis pendens. In the context of a lis pendens based on an action for fraudulent transfer, the Supreme Court stated: “In addition, ‘the property owner ... may be entitled to attorney fees and costs if successful’ in expunging a lis pendens, and ‘[t]rial courts should liberally impose these sanctions upon any who file fraudulent transfer actions and record notices of lis pendens before uncovering credible evidence of fraud.’ [Citation.] The availability of these statutory alternatives and the possible imposition of attorney fees and sanctions should discourage abuse of the lis pendens statute.” (Kirkeby, supra, 33 Cal.4th at p. 651.) Here, petitioner filed the lis pendens before uncovering evidence of a real property claim and even before filing a petition that even arguably asserted a real property claim. The court does not find that there was substantial justification for the filing of the lis pendens; nor does the court find that the circumstances make the imposition of reasonable attorney fees and costs unjust. Attorney fees and costs will therefore be awarded.

In support of the motion, counsel for Bandy, attorney Jeffrey C. Walker, declares that his and his partner’s hourly rate is $400 and that he and his partner have spent in excess of 25 hours of time in connection with this motion (for a total of $10,000.00) and incurred costs of $435 for a first appearance fee, $150 (estimated) for an e-filing fee, and $74.00 in fees for copies of recorded documents included with the motion (for a total of $659.00 in costs). (Walker decl., ¶¶ 3-5.) In reply, Walker declares that he has spent an additional 12 hours of attorney time and expects to spend an additional 5 hours to prepare for, travel to, and attend the hearing on this motion. (Walker reply decl., ¶ 3.) Walker also states that additional costs incurred are $50.50 as the difference between the previously estimated e-filing fee for the motion and the actual cost and $100.00 (estimated) for the e-filing fee for the reply (for an additional total of $150.50). (Walker reply decl., ¶ 4.)

The court notes that all requests for attorney fees are supported only by Walker’s declaration and not by billing statements. While an attorney declaration may provide sufficient evidence to support an award (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375), the absence of time records forces the court to assess the reasonable attorney fees on a broader, less specific basis. (See Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846 [the predicate of any attorney fee award is the necessity and usefulness of the conduct for which compensation is sought]; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325–1326 [blockbilling may obscure inflated or duplicative efforts].) At the same time, no evidence is presented in opposition challenging the reasonableness of the attorney fees claimed. (See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562.)

Based upon the circumstances here, including the papers filed by the parties and the court’s experience with attorney fee requests, the court finds that that $400 is a reasonable hourly rate. The court also finds that 35 hours of attorney time is reasonable, including all time through the hearing of this matter. The court therefore finds reasonable attorney fees in the total amount of $14,000.00. E-file fees not paid to the court but paid to the e-filing vendor are $5.00; Bandy has not shown that costs in excess of this amount are reasonable. The court further finds reasonable costs to be awarded in the amount of $579.00 (=$495.00 (total fees paid to the court by moving party) + $74.00 + $10.00).

The court notes that the filing of the 850 Petition only after the court published its tentative granting the motion to expunge is at least a sharp practice. The Administration Petition had been on file for more than six months and the motion to expunge had been on file for two months. The delay in filing the 850 Petition has caused the court to expend scarce judicial resources unnecessarily. Nevertheless, the existence of the 850 Petition and the nature of the claims in the 850 Petition make it appropriate for the court to consider at the hearing on this motion whether, and to what extent, other provisional relief may be warranted. (See Code Civ. Proc., § 405.8 [“Nothing in this title precludes any party from seeking an attachment, injunction, or other relief in connection with a real property claim or the expungement of a notice of pending action.”].)