Victoria Urenia et al v. Public Storage et al, No. 2:2013cv01934 - Document 19 (C.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO EXPUNGE LIS PENDENS 9 . The Motion is GRANTED, except that the Court DENIES attorney fees by Judge Dean D. Pregerson. (lc). Modified on 8/27/2013. (lc).
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Victoria Urenia et al v. Public Storage et al Doc. 19 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 VICTORIA URENIA, an individual; SOLEDAD CORONA, an individual, 13 Plaintiffs, 14 15 16 v. PUBLIC STORAGE, a real estate investment trust; CITY OF LOS ANGELES, a governmental entity;, 17 18 Defendants. ___________________________ 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-01934 DDP (AJWx) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO EXPUNGE LIS PENDENS [Docket No. 9] I. Background 20 Plaintiffs Victoria Urenia and Soledad Corona(“Ms. Corona”) 21 (collectively “Plaintiffs”) have sued Public Storage, City of Los 22 Angeles, Bank of America (”BOA”), and Michael Anz on several 23 grounds. 24 Ms. Corona filed a lis pendens against real property located at 25 2200 Daly Street, Los Angeles, California 90031 (the “Property”). 26 Presently before the Court is BOA’s Motion to Expunge Lis Pendens 27 and Request for Attorney Fees and Costs (“Motion”). 28 9). (See generally Compl., Docket No. 1.) On June 1, 2013, (Docket No. Dockets.Justia.com 1 Ms. Corona is the former Trustor of a Deed of Trust dated 2 September 4, 2008, that encumbered the Property and included a 3 power of sale clause that provided for the nonjudicial foreclosure 4 of the Property. 5 ("RJN") at Exh. A (Deed of Trust), Docket No. 10.) 6 that Ms. Corona defaulted on her mortgage, and a Notice of Default 7 was recorded against the Property on July 14, 2009. 8 RJN, Ex. B.) 9 October 29, 2009, and the Property was sold on December 14, 2009. (Compl., ¶¶ 23-24; Request for Judicial Notice BOA asserted (Compl. ¶ 24, A Notice of Sale of the Property was recorded on 10 (RJN Ex. A.) Trustee’s Deed Upon Sale was recorded on December 21, 11 2009. 12 Id. Ms. Corona sued in Los Angeles Superior Court for wrongful 13 foreclosure and, after an appeal, BOA prevailed, eventually 14 obtaining legal title and possession of the Property. 15 E ("Trial Court Judgment"); F ("Appellate Decision"); G (Unlawful 16 Detainer “UD” Judgment). 17 rejected Ms. Corona’s post-judgment applications to quash that 18 court’s writ of possession in the UD action. Id. at Ex. H ("UD 19 Court Order Affirming UD Judgment”). 20 II. Legal Standard (RJN, Exhs. On February 8, 2013, the Superior Court 21 “A lis pendens is a recorded document giving constructive 22 notice that an action has been filed affecting title to or right to 23 possession of the real property described in the notice.” 24 v. Superior Court of Orange Cnty., 33 Cal. 4th 642, 647 (2004). 25 California law governs lis pendens matters. 26 Banker Residential Brokerage, 5:13-CV-00986 EJD, 2013 WL 2085161, 27 at *3 (N.D. Cal. May 14, 2013). 28 court in which the action is pending to expunge a lis pendens.” Kirkeby Schmidt v. Coldwell “[A]ny party may apply to the 2 1 Id. (citing Cal. Civ. Proc. Code § 405.30.) 2 a motion to expunge if it determines either (1) that the pleading 3 on which the notice is based does not contain a real property 4 claim, or (2) that the claimant has not established by a 5 preponderance of the evidence the probable validity of the real 6 property claim.” 7 405.32). 8 the existence of a real property claim.” 9 647. 10 11 “The court must grant Id. (citing Cal. Civ. Proc. Code §§ 405.31, “[T]he burden is on the party opposing the motion to show Kirkeby, 33 Cal. 4th at III. Analysis As a threshold issue, Plaintiffs state BOA lacks standing. 12 However, “any party may apply to the court in which the action is 13 pending to expunge a lis pendens.” 14 (citing Cal. Civ. Proc. Code § 405.30). 15 show they have an “interest in the real property,” BOA is a party, 16 and that status is sufficient to confer standing. 17 Code § 405.30 (“[A]ny party, or any nonparty with an interest in 18 the real property affected thereby, may apply to the court in which 19 the action is pending to expunge the notice.”). 20 Schmidt, 2013 WL 2085161, at *3 Although non-parties must Cal. Civ. Proc. BOA states that the Complaint does not contain a real property 21 claim, which is a requirement under Cal. Civ. Proc. Code § 405.31. 22 Specifically, BOA states that Ms. Corona’s Complaint is about 23 personal property, not real property, because the Prayer for Relief 24 in the Complaint does not seek “any relief that would affect title 25 or possession of the property.” 26 (Docket No. 9-1 at 3:10-11.) “The majority of [California] courts have concluded that a 27 claim that seeks an interest in real property merely for the 28 purpose of securing a money damage judgment does not support the 3 1 recording of a lis pendens.” Campbell v. Superior Court, 132 Cal. 2 App. 4th 904, 912 (2005). 3 action is to “set aside foreclosure sale,” and it specifically 4 requests that the “sale should be set aside.” 5 Thus, even if this Court were to side with the majority of 6 California courts, Plaintiffs do not seek only money damages; they 7 seek to affect title. 8 specifically including setting aside the foreclosure in the Prayer 9 for Relief section of the Complaint. However, the Complaint’s final cause of (Compl. ¶¶ 237-42.) BOA’s reply brief faults Ms. Corona for not (Docket No. 16 at 1:2-5.) 10 Because “public policy favor[s] the resolution of disputes on their 11 merits,” BOA makes too much of too little. 12 1447, 1454 (9th Cir. 1994). 13 In re Eisen, 31 F.3d BOA also states that even if Plaintiffs seek a remedy that 14 affects title, she cannot succeed on any of her claims. 15 agrees. 16 aside” should succeed because BOA never “followed the HUD 17 guidelines outlined in the Deed of Trust.” 18 Ms. Corona’s Deed of Trust contained the following language: The Court Plaintiffs state that the claim for “foreclosure to be set Docket No. At 5:26-28. 19 Regulations of HUD Secretary. In many circumstances 20 regulations issued by the Secretary will limit Lender's 21 rights, in the case of payment defaults, to require 22 immediate payment in full and foreclosure if not paid. 23 This Security Instrument does not authorize acceleration 24 or foreclosure if not permitted by regulations of the 25 Secretary. 26 (Compl. ¶ 24.) 27 unavailing. Plaintiffs’ reliance on HUD guidelines is 28 4 1 While HUD regulations may prevent a foreclosure before it 2 occurs, after a foreclosure happens a plaintiff may not use those 3 regulations to “bring a private right of action against the 4 lenders.” 5 4th 1250, 1269 (2012), review denied (Feb. 20, 2013) (analyzing a 6 Deed of Trust containing the same language block quoted above); 7 Weatherford v. Nevada Rural Hous. Auth., 3:10-CV-729-RCJ-RAM, 2013 8 WL 2179292 (D. Nev. May 17, 2013) (citing to “several circuits that 9 have . . . have found that there is no private right of action to Pfeifer v. Countrywide Home Loans, Inc., 211 Cal. App. 10 enforce HUD regulations”). 11 defense is paramount for HUD violations: “HUD regulations . . . may 12 be used defensively as an affirmative defense to a judicial 13 foreclosure action,” but they 14 as a sword in an offensive cause of action against the mortgagee.” 15 Pfeifer, 211 Cal. App. 4th at 1268-70. 16 The distinction between offense and “may not be invoked by the mortgagor Additionally, “[a] full tender must be made to set aside a 17 foreclosure sale, based on equitable principles.” 18 Litton Loan Servicing, LLP, 202 Cal. App. 4th 522, 526 (2011). 19 Although under Pfeiffer, the full tender requirement does not apply 20 to certain pre-foreclosure contexts involving Civil Code § 2923.5, 21 § 2923.5 “does not provide for . . . setting aside a foreclosure 22 sale.” 23 2923.5 context. 24 12-04959 DMG AGRX, 2013 WL 3316157, at *3 (C.D. Cal. June 27, 25 2013).1 Id. Stebley v. Courts are reluctant to apply Pfeiffer outside the § See Talaie v. Wells Fargo Bank, N.A., No. CV 26 1 27 28 There are a few other narrow exceptions to the tender requirement, but Plaintiffs have not stated that any of these exceptions apply in this case. See Lona v. Citibank, N.A., 202 (continued...) 5 1 BOA also states that the claimant cannot prove the probable 2 validity of her real property claim, because any such claim is 3 precluded on res judicata grounds. 4 Credit Act, 28 U.S.C. § 1738, requires us to give the same 5 preclusive effect to a state-court judgment as another court of 6 that State would give,” this Court must “look to California law to 7 determine the effect of the judgment against International Church 8 entered by the Superior Court of Los Angeles County.” 9 Evangelical Church of Soldiers of the Cross of Christ v. Church of 10 Soldiers of the Cross of Christ of State of Cal., 54 F.3d 587, 590 11 (9th Cir. 1995). 12 Because “the Full Faith and Int'l Plaintiffs state that under the California Supreme Court’s 13 decision in Keidatz v. Albany, 39 Cal. 2d 826 (1952) res judicata 14 is inapplicable: “If ... new or additional facts are alleged that 15 cure the defects in the original pleading, it is settled that the 16 former judgment is not a bar to the subsequent action whether or 17 not plaintiff had an opportunity to amend his complaint” (emphasis 18 added). 19 “failure to follow HUD regulations.” 20 For the reasons discussed, these allegations will not cure any 21 defect, because Plaintiffs cannot use HUD regulations offensively.2 However, Plaintiffs’ new allegations are related to BOA’s (Docket No. 13 at 8: 14-15.) 22 1 23 24 25 26 27 28 (...continued) Cal. App. 4th 89, 112-14 (2011) (listing the exceptions). 2 BOA’s other arguments that Keidatz is inapposite are unconvincing. Noting that BOA’s demurrer was sustained without giving Ms. Corona leave to amend, BOA distinguishes this case from Keidatz, where leave to amend was given but judgment was entered because plaintiff’s never amended. But, Keidatz’s holding applies regardless of whether or not leave to amend was given because “less prejudice is suffered by a defendant who has had only to attack the pleadings, than by one who has been forced to go to trial until a (continued...) 6 1 Additionally, Plaintiff’s request for an undertaking is 2 unwarranted. 3 preponderance of the evidence the probable validity of the real 4 property claim,” this Court is not permitted to “order an 5 undertaking to be given as a condition of expunging.” 6 Proc. Code § 405.30 7 Because Plaintiffs have not “established by a Finally, BOA requests an award of attorney fees. 8 The Court DENIES the request. 9 Cal. Civ. IV. Conclusion 10 11 For the reasons stated herein, the Motion is GRANTED, except that the Court DENIES attorney fees. 12 13 IT IS SO ORDERED. 14 15 16 Dated: August 27, 2013 17 DEAN D. PREGERSON 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 2 (...continued) nonsuit is granted. Id. at 830. BOA also states that Keidatz’s “new or additional facts” language only applies to facts that occur after final judgment is entered in a prior case. However, Keidatz only requires “new or additional” allegations, regardless of when the relevant facts occurred. Indeed, in Keidatz there was no discussion as to when the facts that gave rise to the added allegation occurred, only that the allegation was “absent from [plaintiffs] former complaint.” Id. at 829. 7
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