GANAHL LUMBER COMPANY VS 2802 MAYFLOWER AVE, LLC, ET AL.

Tentative Rulings

Case Number: 18STLC10261    Hearing Date: October 19, 2020    Dept: 26

Ganahl Lumber Co. v. 2802 Mayflower Ave., LLC, et al.

MOTION TO EXPUNGE LIS PENDENS

(CCP § 405.31)

TENTATIVE RULING:

Non-Party Blackstone Toro Operating Partnership LP’s Motion to Expunge Lis Pendens is GRANTED. PLAINTIFF IS ORDERED TO PAY ATTORNEY FEES OF $562.50 TO MOVING PARTY WITHIN 30 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff Ganahl Lumber Company (“Plaintiff”) filed the instant action for breach of contract, common counts and foreclosure of mechanic’s lien against Myron Jones and 2802 Mayflower Ave., LLC (“Defendant Mayflower”) on August 6, 2018. On May 8, 2018, Plaintiff recorded the Notice of Mechanic’s Lien. (Compl., ¶11 and Exh. B.)

Non-party Blackstone Toro Operating Partnership LP (“Blackstone”) filed the instant Motion to Expunge Lis Pendens on November 19, 2019. To date, no opposition has been filed.

Discussion

California Code of Civil Procedure provides that “the court shall order the notice [of 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; see Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.) A real property claim is a cause of action in a pleading that “would, if meritorious, affect [] title to, or the right to possession of, specific real property . . . .” (Code Civ. Proc., § 405.4; Kirkeby, supra, 33 Cal.4th at 647.) “[W]hen a motion to expunge is brought, the burden is on the party opposing the motion to show the existence of a real property claim.” (Kirkeby, supra, 33 Cal.4th at 647; see Code Civ. Proc., § 405.30.)

Code of Civil Procedure, section 405.4 defines a “real property claim” as one, “which would, if meritorious, affect (a) title to, or the right to possession of, specific real property . . . .” (Code Civ. Proc., § 405.4.) A claim for right to possession of specific real property includes a claim to possession of real property based on a leasehold. (Parker v. Superior Court (1970) 9 Cal.App.3d 397, 400.)

(Ibid (emphasis added).)

Plaintiff alleges that it agreed to supply requested construction materials to Defendants in exchange of the reasonable market value of the construction materials. (Compl., ¶7.) Defendants allegedly breached the agreement by failing to pay for the materials. (Id. at ¶9.) Plaintiff further alleges that Defendant Mayflower is “the leasees, owners or reputed owners of the Subject Property.” (Id. at ¶20.)

Plaintiff must next demonstrate the probable validity of the real property claim by a preponderance of the evidence. (Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; Code Civ. Proc., § 405.30, et seq.) A claim has “probable validity” where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) The Court grants Blackstone’s request for judicial notice of the instruments recorded with respect to the Subject Property pursuant to Cal. Evid. Code section 452, subdivision (c).

Blackstone argues that Plaintiff cannot establish a probability of prevailing on its real property claim. The Motion demonstrates that Defendant Mayflower secured a loan for $731,300.00 against the Subject Property from Triumph Capital Partners Inc. (“Triumph Capital”) and recorded the Deed of Trust on June 30, 2017. (Motion, RJN, Exh. A.) Triumph Capital later assigned the Deed of Trust to Blackstone. (Id. at Exh. B.) Blackstone’s Deed of Trust, therefore, was recorded prior to Plaintiff’s mechanic’s lien, making it the superior lien on the Subject Property. (Cal. Civ. Code, § 2897.)

Additionally, following Defendant Mayflower’s default on the loan, the Subject Property was sold at a foreclosure auction to Blackstone on April 25, 2019. (Id. at Exhs. G-H.) The sale wiped out any junior liens. (Bank of Am. v. Graves (1996) 51 Cal.App.4th 607, 611-612.) Therefore, the Court finds no probability that Plaintiff will prevail on the real property claim.

Under Code of Civil Procedure section 405.38, Blackstone is entitled to an award of attorney fees in the amount of $562.50 for bringing the instant Motion. (Motion, Learned Decl., ¶4.)

Conclusion

Non-Party Blackstone Toro Operating Partnership LP’s Motion to Expunge Lis Pendens is GRANTED. PLAINTIFF IS ORDERED TO PAY ATTORNEY FEES OF $562.50 TO MOVING PARTY WITHIN 30 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.