Tentative Rulings

Case Number: BC610795    Hearing Date: July 14, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: July 14, 2020

Case Name: Hacker v. Homeward Residential, Inc., et al.

Case No.: BC610795

Matter: Motion to Expunge Recorded Documents

Moving Party: Defendant Deutsche Bank National Trust Company, as Trustee for Sound

View Home Loan Trust 2006-opt 3, Asset-backed Certificates, Series 2006- Opt 3

Responding Party: Plaintiff Ron Hacker, as successor trustee for 1713 Stearns Laverne

Family Trust, Dated August 1, 2012

Tentative Ruling: The Motion to Expunge is granted.

On November 21, 2018, Plaintiff filed the Second Amended Complaint (“SAC”) alleging causes of action for (1) breach of written contracts, (2) breach of the covenant of good faith and fair dealing, (3) wrongful foreclosure, (4) fraud, (5) violation of the UCL, (6) cancellation of instruments, (7) quiet title, (8) declaratory relief, and (9) specific performance of contract.

On April 5, 2019, the Court struck the SAC, and on August 29, 2019, entered a judgment of dismissal for Defendants.

Defendant Deutsche Bank National Trust Company, as Trustee for Sound View Home Loan Trust 2006-opt 3, Asset-backed Certificates, Series 2006- Opt 3, seeks to expunge three documents recorded by Plaintiff regarding the real property that is the subject of this action: (1) the notice of pendency of action recorded on February 22, 2016, as instrument no. 20160188731, (2) the lease allegedly entered into by Ron Hacker and Robert Schafer and Jessica Moran recorded on September 13, 2016, as instrument no. 20161099355, and (3) the notice of intent to preserve interest in right of title, right of possession recorded by Ron Hacker on May 24, 2018, as instrument no. 20180518604. Defendant seeks to expunge such documents because Plaintiff cannot have an interest in the subject real property given that the action has been dismissed.

Code Civ. Proc. § 405.30 provides, “[a]t 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. . . . Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”

Moreover, Code Civ. Proc. § 405.31 provides, “[i]n 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. § 405.32 states, “[i]n proceedings under this chapter, the 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.”

Plaintiff argues that the Court lacks jurisdiction to rule on the Motion because a judgment of dismissal has already been entered.

“But the concept of finality of trial court judgments, and the effect of such finality upon the court's subject-matter jurisdiction, are rendered elastic by numerous exceptions and qualifications to the general rule. Thus, for example, it is well established that despite ‘finality’ a trial court can set aside a wholly void judgment, correct clerical errors in the judgment, modify certain kinds of judgments, exercise powers which it has expressly reserved, rule upon a pending motion to tax costs, make any of a variety of orders in enforcement of the judgment, and, in general deal with and dispose of matters which can be classified as ‘ancillary and collateral’ to the judgment. (Marini v. Mun. Court (1979) 99 Cal.App.3d 829, 834.) Here, expungement of lis pendens and associated documents qualifies as a collateral matter. (United Prof'l Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 385.) The Court also notes that a motion to expunge can be brought “[a]t any time after notice of pendency of action has been recorded.” (Code Civ. Proc. § 405.30.) Thus, the Court concludes it has jurisdiction to rule on the instant Motion.

Plaintiff next argues that the Motion should be denied because under Peery v. Superior Court (1981) 29 Cal.3d 837, Plaintiff need only show that he has pursued his appeal of the Court’s judgment in good faith in order to maintain his recorded documents.

However, Peery is no longer good law given the revision of the Code of Civil Procedure as it relates to notices of pendency of action. Indeed, the new law

requires nothing less than that the trial court grant a motion for the expungement of lis pendens pending appeal in the wake of the defeat of the claimant in the trial court. There is but one, very unlikely, exception, inherent in the statutory language of probable validity: If the trial judge himself or herself is willing to find, on the record, that the trial court's ruling will “probably” be overturned on appeal, then the trial court should deny the motion. Of course, it is going to be a rare case indeed where the trial court will be willing to state on the record that its decision in a case will “probably” be reversed. Ninety-nine-point-ninety-nine percent of the time expung[e]ment will be required.

(Mix v. Superior Court (2004) 124 Cal.App.4th 987, 989.)

Here, given that the Court has entered a judgment of dismissal, Plaintiff does not have a probability of prevailing; further, the Court respectfully does not believe that its ruling on Plaintiff’s motions to set aside such judgment will probably be reversed. Thus, expungement is proper. (Code Civ. Proc. § 405.32.)

Plaintiff also argues that the subject lease cannot be expunged without notice to the tenants. However, the written lease which was recorded has terminated by its own terms, and any continuing month-to-month lease is a separate matter.

Defendant requests an order enjoining Plaintiff from filing further notices of pendency of action. The Court respectfully declines to enter such an order.

Because Plaintiff cannot prevail on his real property claims, the Motion for Expungement is granted.

Case Number: BC610795    Hearing Date: January 15, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: January 15, 2020

Case Name: Hacker v. Homeward Residential, Inc., et al.

Case No.: BC610795

Motion: Motion to Tax Costs

Moving Party: Plaintiff Ron Hacker, as successor trustee for 1713 Stearns Laverne Family Trust, Dated August 1, 2012

On September 10, 2019, Defendants Homeward Residential, Inc., Deutsche Bank National Trust Company, Western Progressive, LLC, Ocwen Loan Servicing, LLC, Wells Fargo Bank, N.A., Power Default Services, Inc., Brandy Berns, and Vicki Pospisil filed a memorandum of costs for $6,967.29.

Plaintiff has filed a Motion to Tax at least $5,957.70 in costs as (1) unreasonable in amount; (2) not reasonably necessary to the conduct of the litigation, or (3) impermissible under Code Civ. Proc. § 1033.5. 

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.  On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.  Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”  (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 

Defendants concede that their requests for (1) $225.67 in postage fees and (2) $390 for an appellate brief are improper.  These costs are stricken.

As to the remainder of the challenged entries, the Court, in the exercise of its discretion, will not award the $1,355 requested for process servers/courier services and $285.72 representing court document retrieval fees.  (Code Civ. Proc. § 1033.5(c)(4).)  The Court finds that Plaintiff has failed to carry its burden with respect to the remainder of costs requested.