Fung – Trust

Additionally, the previously unreported related case in Riverside County Superior Court causes concern. The fact that the present case and the Riverside case both involved title to the same property makes them related. (Cal. Rules of Court, Rule 3.300(a).) Koenig had a duty to serve and file a notice of related case no later than 15 days after Koenig learned of the existence of the case. (Cal. Rules of Court, Rules 3.300(b) and 3.300(e).) Although raised too late to be considered in connection with this motion, the separate proceeding could be considered in a future vexatious litigant motion.

By this order, the Court in no way intends to discourage Koenig from utilizing the court’s processes and makes no prediction as to how any issue in this proceeding may ultimately be adjudged or adjudicated. But Koenig is reminded she must participate in this proceeding appropriately and will be held to the same rules as other litigants before this court. (See Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

The order is also made expressly without prejudice as to Trustee’s right to file a subsequent motion to deem Koenig a vexatious litigant in this or another judicial proceeding in the event Koenig’s conduct would support such a finding, whether alone or in addition to the conduct identified by trustee in this motion.

The Trustee is directed to give notice.

9 Fung – Trust; 30-2026-01548357 Motion to Expunge Lis Pendens

Respondent Michelle Fung’s Motion to Expunge Lis Pendens (ROA 51) is DENIED.

Pursuant to CCP §§ 405.22, 405.23, 405.30, 405.31, 405.34, and 405.38, Respondent Michelle Fung (Respondent) seeks an order expunging a lis pendens placed on property commonly known as 2602 W. Castor Street, Santa Ana, CA 92704 (Property) on the grounds Petitioners: (1) do not assert a real property claim against the Property and (2) cannot establish the probable validity of their claim.

A lis pendens must be expunged if: (1) the pleading on which the lis pendens is based does not contain a real property claim; or (2) the claimant cannot establish the probable validity of the real property claim(s) by a preponderance of the evidence. (Code of Civ. Proc., §§ 405.31 and 405.32.) The party opposing a motion to expunge has the burden of showing both the existence of a real property claim and the probable validity of that claim. (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647; Code of Civ. Proc., § 405.30.)

Real property claim. A “real property claim” is one which, if meritorious, would affect title to, or the right to possession of, specific real property; or the use of an easement identified in the pleading. (Code of Civ. Proc., § 405.4.) The allegations of the petition determine whether a “real property claim” is involved; no independent evidence is required. (Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149.)

Because the petition seeks, in part, to remove the trustee (ROA 2 at 3:25-4:20) and the trustee holds title to a trust’s real property, the petition asserts a real property claim. “The trustee of a trust holds title to real property. Unlike a corporation, a trust is not a legal entity. Rather, a trust is a fiduciary relationship with respect to property. When property is held in trust, there is always a divided ownership of property, generally with the trustee holding legal title and the beneficiary holding equitable title. Trusts do not own property; trustees do.” (Newell v. Superior Court (2024) 107 Cal.App.5th 728, 736–737.) If Petitioners are successful on their claim, a new trustee would be designated and that new trustee would then hold title to the Property in his or her name as successor trustee. (Id. at p. 737.)

Probable validity of the claim. To overcome the motion to expunge, Petitioners must establish “it is more likely than not [they] will obtain a judgment” on their real property claim. (Code of Civ. Proc., § 405.3.) Petitioners’ showing must be by a preponderance of the evidence. (Code of 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 of Civ. Proc., § 405.3).

Petitioners have the burden of establishing they are more than likely than not to succeed on their request to remove the trustee for violating her duties as Trustee. The evidence offered by Petitioners in connection with their supplemental briefing is sufficient to establish the probable validity of that claim.

The motion to expunge is DENIED.

Petitioners are directed to give notice.

10 McElroy – Trust Motion to Consolidate 30-2025-01478387 Petitioner Kimberly Pierce’s Motion to Consolidate (ROA 29) is DENIED.

As an initial matter, the motion is procedurally defective. The motion did not “[l]ist all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record” or “[c]ontain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first” as required by Rules of Court, rule 3.350(a)(1)(A) & (B). Further, a notice of motion to consolidate must be filed in each case sought to be consolidated. (CRC, Rule 3.350(a)(1)(C).)

Moving on the merits of the motion, the court is not persuaded that consolidation of these actions is appropriate. “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code of Civ. Proc., § 1048(a).) The granting or denial of the motion to consolidate rests in the sound discretion of the trial court, and will not be reversed except upon a clear showing of abuse of discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App. 4th 976, 978–79.)