Mountain Vista Holdings, LLC and Murrieta Holdings 2012-12 LLC v. Galloway Financial, LLC et al.

Defendant's counsel within 15 business days. (Id.) [1] The 60 th day was Sunday December 21, 2025.

Plaintiffs allege that Defendants made secured loans for Plaintiffs to purchase real property. However, the loans fell into default, which triggered a 27% interest rate, and Defendant foreclosed. Plaintiffs seek to cancel the loans because the true default interest rate was concealed. Defendants Erik Rist, individually and as Trustee of the Joshua Hawkesby move for leave to amend the answer to the First Amended Complaint. Defendants Galloway Financial, LLC, a Colorado limited liability company and ERIK RIST, individually and as Trustee of the Joshua Hawkesby Exempt Trust Created Under the Miller Intervivos Trust Dated 12/06/2006 move to expunge lis pendens related to the First Amended Complaint.

Defendants Erik Rist, individually and as Trustee of the Joshua Hawkesby's motion for leave to file a First Amended Answer is GRANTED. Defendant is to file a stand-alone copy of the First Amended Answer today, which is deemed served as of the date of this order. Defendants Galloway Financial, LLC, a Colorado limited liability company and ERIK RIST, individually and as Trustee of the Joshua Hawkesby Exempt Trust Created Under the Miller Intervivos Trust Dated 12/06/2006's motion to expunge lis pendens related to the First Amended Complaint is GRANTED.

Pursuant to Civ. Proc. Code, Sec.Sec. 405.31 and 405.32, an undertaking is not required. Nonetheless, the order expunging lis pendens may be ordered stayed pending a hearing on amount of undertaking pursuant to Code Civ. Proc., Sec. 405.34. The Court finds that an appropriate amount of the undertaking pursuant to Code Civ. Proc., Sec. 405.34 would be the amount of the underlying loan and pre-default interest--excluding the claim 27% penalty interest--which would have been sufficient to cure the default and reinstate the loan at the time of the non-judicial foreclosure sale.

If Plaintiffs represent that they can realistically post this undertaking amount, then the Court will give the parties an opportunity to ascertain and brief this amount, in which case, the Court will stay the order expunging lis pendens and set this amount. Defendants' request for attorney's fees pursuant to Code Civ. Proc., Sec. 405.38 is GRANTED in the reduced amount of $4,140.

ANALYSIS

Motion For Leave To Amend Answer

Request For Judicial Notice

Defendants request that the Court take judicial notice of the following: 1. The Complaint filed on October 1, 2021, by plaintiffs Mountain Vista Holdings, LLC and Murrieta Holdings 2012-12 LLC against Defendants Galloway Financial, LLC and Erik Rist, as Trustee, among others, San Diego County Superior Court Case No. 37-2021-00042025 (the "San Diego Action").

2. The Dismissal With Prejudice of the San Diego Action filed on November 7, 2022.

3. The Complaint filed in this action on July 25, 2025.

4. The Notice of Pending Action (CCP Sec.405.20) recorded on July 29, 2025, in the Official Records, Riverside County, as Instrument No. 2025-0230390.

5. The First Amended Complaint filed in this action on September 16, 2025.

6. The Verification of First Amended Complaint filed in this action on September 18, 2025.

7. Minute Order in this action dated September 29, 2025.

8. The Order Granting Motion to Expunge Lis Pendens And Request for Attorney's Fees filed in this action on September 29, 2025.

9. The Notice of Pending Action (Code Civ. Proc. Sec. 405.21) recorded on October 9, 2025, in the Official Records, Riverside County, as Instrument No. 2025-0310096.

10. The Minute Order in this action dated October 23, 2025.

11. The Answer of Galloway Financial, LLC filed in this Action on October 27, 2025.

12. The Declaration of Bonnie Brunet in Support of Defendant Galloway Financial, LLC's Motion for Sanctions and Dismissal Under C.C.P. Section 128.7 filed in this action on November 21, 2025.

13. The Declaration of Martin Rist in Support of Defendant Galloway Financial, LLC's Motion for Sanctions and Dismissal Under C.C.P. Section 128.7 filed in this action on November 21, 2025.

14. The Minute Order in this action dated December 17, 2025.

15. The Minute Order in this action dated February 20, 2026.

16. The Substitution of Attorney as to Defendant Erik Rist, as Trustee, filed in this action on March 9, 2026.

17. The Substitution of Attorney as to Defendant Erick Rist, individually, filed in this action on March 9, 2026.

18. The Substitution of Attorney as to Galloway Financial, LLC, filed in this action on March 9, 2026.

19. The Answer of Defendants Erik Rist, Individually and as Truste of the Joshua Hawkesby Exempt Trust Created Under the Miller Intervivos Trust Dated 12/06/2006 filed in this action on March 18, 2026.

20. The Minute Order in this action dated March 20, 2026.

21. The Notice of Rulings and of Setting of Future Hearings, Including Trial filed in this action on April 21, 2026 (including April 20, 2026 Minute Order attached thereto).

22. The Minute Order in this action dated April 24, 2026 and Clerk's Certificate of Service by Electronic Service.

23. The Minute Order in this action dated May 1, 2026, and Clerk's Certificate of Service by Electronic Service.

Requests Nos. 1, 2, 3, 5, 6, 7, 8, 10 - 23 are GRANTED per Evid. Code Sec. 452(d)(court records). Requests Nos. 4, 9 are GRANTED. The Court may take judicial notice of recorded documents. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, overruled on other grounds in Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156, 165; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274).

Discussion

Defendants Erik Rist, individually and as Trustee of the Joshua Hawkesby move for leave to amend the answer to the First Amended Complaint. The Court has not received any opposition to this motion. The basis of this motion is that the original answer was not verified and the proposed amended answer contains additional affirmative defenses: lack of applicability of the CLRA and Elder Abuse Act and that the loans at issue do not have a usurious interest rate. This will enable Defendants to bring a motion for summary judgment.

The Declaration of Joel G. Weinberg, who recently substituted in as counsel, satisfies the requirements of California Rules of Court Rule 3.1324(b). A red-lined copy of the proposed Amended First Amended Answer reflecting the proposed changes is attached as Exhibit 1 to the Weinberg Declaration. The motion for leave to file a First Amended Answer is GRANTED. Defendant is to file a stand-alone copy of the First Amended Answer today, which is deemed served as of the date of this order.

Motion To Expunge Lis Pendens

Request For Judicial Notice

Defendants request that the Court take judicial notice of the following: 1. The Deed of Trust Assignment of Rents and Security Agreement dated December 13, 2019, regarding the loan by Galloway and Erik Rist, as Trustee of the Joshua Hawkesby Exempt Trust created under the Miller Intervivos Trust Dated 12/06/2006 ("Rist as Trustee") in the amount of $425,000 to Murrieta Holdings 2012-12 LLC ("Murrieta") and secured by the real property commonly known as 24370 Adams Avenue, Murieta, CA 92562, APN 906-060-039-3 and 906-060-041-4 (the "Property") (the "First Loan") and recorded on December 20, 2019, in the Official Records, Riverside County, as Document No. 2019-0528571.

2. The Deed of Trust Assignment of Rents and Security Agreement dated March 2, 2020, regarding the loan by Galloway in the amount of $250,000 to and secured by the Property (the "Second Loan") and recorded on March 20, 2020, in the Official Records, Riverside County, as Document No. 2020-0111727.

3. The Substitution of Trustee regarding the Deed of Trust concerning the First Loan dated May 21, 2021, and recorded on June 1, 2021, in the Official Records, Riverside County, as Document No. 2021-0333318.

4. Regarding the First Loan, a Notice of Default and Election to Sell Under Deed of Trust date May 21, 2021, and that was recorded on June 1, 2021, the Official Records, Riverside County, as Document No. 2021-0333319.

5. The Substitution of Trustee regarding the Deed of Trust concerning the Second Loan dated May 21, 2021, and recorded on June 4, 2021, in the Official Records, Riverside County, as Document No. 2021-0342299.

6. Regarding the Second Loan, a Notice of Default and Election to Sell Under Deed of Trust date May 21, 2021, and that was recorded on June 4, 2021, in the Official Records, Riverside County, as Document No. 2021-0342300.

7. The Complaint filed on October 1, 2021, by plaintiffs Mountain Vista Holdings, LLC and Murrieta against Defendants Galloway and Rist as Trustee, San Diego County Superior Court Case No. 37-2021-00042025 (the "San Diego Action").

8. The October 6, 2021, denial by the Court in the San Diego Action of the Ex Parte Application for A Temporary Restraining Order and Order to Show Cause re Issuance of a Preliminary Injunction by plaintiffs Mountain Vista Holdings, LLC and Murrieta.

9. On October 6, 2021, Murrieta filed a Petition for Chapter 11 Bankruptcy (United States Bankruptcy Court, Central District of California, Case No. 8:21-bk-12430) (the "First Bankruptcy Case").

10. On August 8, 2022, the Bankruptcy Court entered an Order Granting the United States Trustee's Motion to Dismiss the First Bankruptcy Case.

11. The Dismissal With Prejudice of the San Diego Action filed on November 7, 2022.

12. On October 4, 2023, Murrieta filed a Petition for Chapter 11 Bankruptcy (United States Bankruptcy Court, Central District of California, Case No. 8:23-bk-12045) (the "Second Bankruptcy Case").

13. On September 30, 2024, the Bankruptcy Court concerning the Second Bankruptcy Case entered an Order Granting Galloway relief from the automatic stay.

14. The Deed of Trust Assignment of Rents and Security Agreement dated September 26, 2022, regarding the loan by Galloway in the amount of $115,000 to and secured by the Property (the "Third Loan") and recorded on October 4, 2022, in the Official Records, Riverside County, as Document No. 2022-0417045.

15. The Substitution of Trustee regarding the Deed of Trust concerning the Second Loan dated October 28, 2024, and recorded on November 19, 2024, in the Official Records, Riverside County, as Document No. 2024-0355376.

16. The Notice of Trustee's Sale regarding the Deed of Trust concerning the Second Loan dated December 12, 2024, and recorded on December 16, 2024, in the Official Records, Riverside County, as Document No. 2024-0382093.

17. The Assignment by Rist as Trustee to Galloway regarding the Deed of Trust concerning the First Loan dated January 16, 2025, and recorded on February 25, 2025, in the Official Records, Riverside County, as Document No. 2025-0055387.

18. On January 16, 2025, Murrieta filed a Petition for Chapter 11 Bankruptcy (United States Bankruptcy Court, Central District of California, Case No. 8:25-bk-10130) (the "Third Bankruptcy Case").

19. On February 27, 2025, the Bankruptcy Court concerning the Third Bankruptcy Case entered an Order granting Galloway relief from the automatic stay.

20. On April 4, 2025, the Bankruptcy Court dismissed the Third Bankruptcy Case.

21. The Trustee's Deed Upon Sale concerning the March 5, 2025 sale of the Property to Galloway pursuant to foreclosure of the Deed of Trust concerning the Second Loan, with said Trustee's Deed Upon Sale recorded on March 24, 2025 in the Official Records, Riverside Couty, as Document No. 2025-0087415.

22. The Complaint filed in this action on July 5, 2025.

23. The Notice of Pending Action (CCP Sec.405.20) concerning this action recorded on July 29, 2025, in the Official Records, Riverside County, as Instrument No. 2025-0230390.

24. The First Amended Complaint filed in this action on September 16, 2025.

25. The Verification of First Amended Complaint filed in this action on September 18, 2025.

26. Minute Order in this action dated September 29, 2025.

27. The Order Granting Motion to Expunge Lis Pendens And Request for Attorney's Fees filed in this action on September 29, 2025.

28. The Notice of Pending Action (Code Civ. Proc. Sec. 405.21) concerning this action recorded on October 9, 2025, in the Official Records, Riverside County, as Instrument No. 2025 0310096.

29. The Minute Order in this action dated October 23, 2025.

30. The Declaration of Bonnie Brunet in Support of Defendant Galloway Financial, LLC's Motion for Sanctions and Dismissal Under C.C.P. Section 128.7 filed in this action on November 21, 2025.

31. The Declaration of Martin Rist in Support of Defendant Galloway Financial, LLC's Motion for Sanctions and Dismissal Under C.C.P. Section 128.7 filed in this action on November 21, 2025.

32. The Minute Order in this action dated December 17, 2025.

33. The Minute Order in this action dated February 20, 2026.

34. The Minute Order in this action dated March 20, 2026.

35. The Notice of Rulings and of Setting of Future Hearings, Including Trial filed in this action on April 21, 2026 (including April 20, 2026 Minute Order attached thereto).

36. The Minute Order in this action dated April 24, 2026 and Clerk's Certificate of Service by Electronic Service.

37. The Minute Order in this action dated May 1, 2026, and Clerk's Certificate of Service by Electronic Service.

38. That Ester Perez is a broker licensed by the State of California Department of Real Estate, License ID 01383549 and has a Mortgage Loan Originator License Endorsement NMLS ID: 320792.

39. That Joseph Perez is a salesperson licensed by the State of California Department of Real Estate, License ID 01776728 and that his responsible broker is Ester Perez.

40. The Minute Order in this action dated July 17, 2026.

Requests Nos 1 - 6, 14 - 17, 21, 23 and 28 are GRANTED. The Court may take judicial notice of recorded documents. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, overruled on other grounds in Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156, 165; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Requests Nos. 7 - 13, 18 - 20, 22, 24 - 27, 29 - 37 and 40 are GRANTED per Evid. Code Sec. 452(d)(court records). Requests Nos. 38 and 39 are GRANTED. Pursuant to Evid. Code Sec. 452(c), the Court may take judicial notice of official records of an administrative agency. (Ordlock v. Franchise Tax Bd. (2006) 38 Cal.4th 897, 912.)

Discussion

Defendants Galloway Financial, LLC, a Colorado limited liability company and ERIK RIST, individually and as Trustee of the Joshua Hawkesby Exempt Trust Created Under the Miller Intervivos Trust Dated 12/06/2006 move to expunge lis pendens recorded in response to the Court's July 17, 2026 Order Granting Plaintiffs' Leave to Record Lis Pendens (the "Lis Pendens No. 3") or, in the alternative, for an Order requiring Plaintiffs to post an undertaking. Defendants also request an Order awarding them attorneys' fees and costs in the amount of $7,251.00 in favor of Defendants and against Plaintiffs. Defendants' request for attorneys' fees and costs is pursuant to Code of Civil Procedure section 405.38

In order to expunge lis pendens, Defendants have to demonstrate that none of the causes of action support the lis pendens. Defendants' motion is based on the following arguments: 1. Plaintiffs Cannot Establish the Probable Validity of Their Claims. Civ. Proc. Code Sec. 405.32 provides: In 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.

On a motion to expunge, the burden is on the claimant to prove the probable validity of the real property claim under Civ. Proc. Code, Sec. 405.32: "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." (Code Civ. Proc., Sec. 405.30.) " '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., Sec. 405.3.)

On a motion to expunge lis pendens, the court shall order the notice of lis pendens 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 (CCP Sec. 405.32). A lis pendens will be expunged without an undertaking if the court finds that the claimant has not established the probable validity of the real property claim by a preponderance of the evidence. (Code Civ. Proc., Sec. 405.32; Robert I. Weil and Ira A. Brown, California Practice Guide: Civil Procedure Before Trial, The Rutter Group, Sec. 9:429.) The judge weighs conflicting evidence in deciding whether plaintiff has sustained his burden. (Id. at Sec. 9:436.2.)

"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. (Civ. Proc. Code, Sec. 405.4.) There are five causes of action asserted in the First Amended Complaint: (1) fraudulent concealment; (2) cancellation of instruments; (3) quiet title; (4) unfair competition; and (5) financial elder abuse.

The fraudulent concealment claim is does not expressly seek to affect title or possession to the subject real property. Rather, Plaintiffs allege that if they had known that the true rate of interest was 27% they would not have [taken out] the loans, and that Plaintiffs have sustained damages. (1AC, P.P. 30 - 32.) Plaintiffs do not expressly seek to recover title or possession of the subject real property in connection with this cause of action. Nonetheless, this implicitly states a basis for rescission of the underlying loan, which would require restitution, i.e., a return of the loan proceeds which Plaintiffs received in order to regain possession of the property.

The general contract rules that govern this case are as follows: If a party believes it has been fraudulently induced to enter into a contract, " ' "[i]n order to escape from its obligations the aggrieved party must rescind ... ." ' " (Citation omitted.) The party's rescission obligations depend on the type of fraud alleged. Our state distinguishes between fraud in the execution or inception of a contract, and fraud in the inducement of a contract. (Ibid.) If the fraud goes to the execution or inception of the contract, so that the promisors do not know what they are signing, the contract lacks mutual assent and is void.

It thus " ' "may be disregarded without the necessity of rescission." ' " (Ibid.) " ' In the usual case of fraud, where the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.' " (Citation omitted.) In that case, the party seeking to void the contract must rescind under our statutory and common law rules. Rescission requires that the aggrieved party provide the other party to the agreement with " 'prompt notice' " and an " ' offer to restore the consideration received, if any.' " (Ibid.) (Village Northridge Homeowners Assn. v.

State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 921 [bold emphasis and underlining added].)

Thus, [Civil Code] section 1692 "'restates the equity jurisprudence applicable in the rescission context.' [Citation.] The fundamental principle underlying that jurisprudence 'is that "in such actions the court should do complete equity between the parties" and to that end "may grant any monetary relief necessary" to do so. [Citation.]' (Citation omitted.) Rescission is intended to restore the parties as nearly as possible to their former positions and '"to bring about substantial justice by adjusting the equities between the parties" despite the fact that "the status quo cannot be exactly reproduced."' [Citation.]" (Citation omitted.) " Rescission extinguishes the contract (...

Sec. 1688), terminates further liability, and restores the parties to their former positions by requiring them to return whatever consideration they have received. [Citation.] Thus, the '[r]elief given in rescission cases--restitution and in some cases consequential damages-- puts the rescinding party in the status quo ante, returning him to his economic position before he entered the contract.'" (Citation omitted.) (Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1386 [bold emphasis added].)

This goes to the issue of tender, which the Court which is relevant to the cancellation of instruments and quiet title causes of action. The cancellation of instruments cause of action alleges: 35. Plaintiffs reallege every allegation set forth in paragraphs 1-33 above as though fully The Notes, Deeds of Trust, Notices of Default, Notices of Sale, and Foreclosure Deed are void under Civil Code Sec. 3412 and related laws because they were procured by fraud and deceit of Defendants, as alleged in this Complaint. They also bear incorrect and fraudulent statements by misstating the amounts owed by Plaintiffs through the inclusion of improper interest and penalties, and failure to include all payments made by Plaintiff.

36. Plaintiffs were and are the legal or equitable owners of the property identified in the Deeds of Trust.

37. If the Notes, Deeds of Trust, Notices of Default, Notices of Sale, and Foreclosure Deed are not cancelled and left outstanding then serious injury or risk of injury will affect Plaintiffs in that Plaintiffs will be deprived of the value of the real property securing the Deeds of Trust.

38. Plaintiffs have either tendered the secured indebtedness or were excused from doing so because Defendants engaged in fraud and Plaintiffs attack the validity of the underlying debt, as well as the amounts claimed by Defendants. (1AC, P.P. 35 - 38.)

In seeking to cancel the Notes, Deeds of Trust, Notices of Default, Notices of Sale, and Foreclosure Deed, Plaintiffs are in effect seeking to rescind the underlying loan and cancel the foreclosure sale. This triggers the rescission obligation discussed above. To the extent that Plaintiffs seek to regain title and possession to the property, this triggers a tender obligation, which will be discussed below.

The quiet title cause of action alleges: 42. Plaintiffs seek to quiet title to the Property. On information and belief, Defendants claim an interest in the property. Specifically, Defendants claim ownership through the fraudulent and improper foreclosure sale.

43. Plaintiffs have offered to restore any consideration needed to do equity, and Plaintiffs are excused from making a tender by virtue of Defendants' fraudulent statements and failures to disclose.

44. Plaintiffs seek to quiet title as of the date of filing this lawsuit.

45. Plaintiffs further seek equitable restitution of all amounts not fully restored to Plaintiffs. (1AC, P.P. 42 - 45.)

Seeking to quiet title to the property so as to regain title and possession to the property again triggers a tender obligation. Plaintiffs argue that tender is excused because Plaintiffs challenge the amount and validity of the debt used to foreclose. As discussed above, Plaintiffs' theory is that the loan and resulting property is voidable due to fraud as the true interest rate. [I]n the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust. (Citations [*878] omitted.)

This requirement is based on the theory that one who is relying upon equity in overcoming a voidable sale must show that he is able to perform his obligations under the contract so that equity will not have been employed for an idle purpose. (Citation omitted.) ... Because there was no recital in the Commonwealth deed to Emerald which undermined the Calmco substitution, the deed to Emerald did not create any conclusive presumption that Commonwealth continued to act as trustee. Accordingly, in attacking the Commonwealth deed Dimock was not required to rely upon equity in setting aside a merely voidable deed. (Citation omitted.)

Rather, he could rely on the face of the record to show that the Commonwealth deed was void. (Ibid.) Because Dimock was not required to rely upon equity in attacking the deed, he was not required to meet any of the burdens imposed when, as a matter of equity, a party wishes to set aside a voidable deed. (Citation omitted.) In particular, contrary to the defendants' argument, he was not required to tender any of the amounts due under the note. (Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 877-78 [bold emphasis and underlining added].)

Where a trustee's deed merely voidable, not void, Plaintiffs would be required to tender the amount of the indebtedness.

"[A] tender may not be required where it would be inequitable to do so." (Citation omitted.) "Similarly, when the person making the claim has a counter-claim or set-off against the beneficiary, . . . it is deemed that they offset each other, and if the offset is equal to or greater than the amount due, a tender is not required . . .. Also, if the action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmative of the debt." (Citations omitted.) (Onofrio v.

Rice (1997) 55 Cal.App.4th 413, 424.) Here, however, the 1AC does not attack the underling principal amount of the debt borrowed--$790,000 (1AC, P. 2) but only the post-default interest rate. (1AC, P.P. 13, 17, 21.) That is, Plaintiffs are only complaining about amounts charged after they breached the loan agreement. As such, the Court finds that equity would require a tender of the outstanding amount of the principal debt and pre-default interest to which Plaintiffs agreed, exclusive of the disputed post-default interest/penalties they claim were concealed.

As to tender, the equity requires that Plaintiffs tender the amount of the underlying loan and pre-default interest [1] -- excluding the claim 27% penalty interest --which would have been sufficient to cure the default and reinstate the loan at the time of the non-judicial foreclosure sale. Plaintiffs have not demonstrated that they can tender this amount immediately. " 'A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.' (Citation omitted.)" (Fpci Re-Hab 01 v.

E & G Invs. (1989) 207 Cal.App.3d 1018, 1021.) "A tender is an offer of performance made with the intent to extinguish the obligation. (Civ. Code, Sec. 1485.)" (Citation omitted.) A tender must be one of full performance (Civ. Code, Sec. 1486) and must be unconditional to be valid. (Civ. Code, Sec. 1494; Still v. Plaza Marina Commercial Corp., supra, 21 Cal.App.3d at p. 385.) The giving of a note by a debtor for the amount of the debt does not constitute payment unless the parties agree. (Citation omitted.) (Arnolds Management Corp. v.

Eischen (1984) 158 Cal.App.3d 575, 580.)

In this regard, the Court finds that Plaintiffs have not demonstrated the probable validity of a real property claim asserted in the 1AC because there is no basis to set aside the trustee's sale, cancel the foreclosure deed and all associated instruments and restore title to Plaintiffs unless they have acted in the manner of rescinding the underlying loans, which in this instance would restring the undisputed loan proceeds they received and pre-default interest thereupon or, alternatively, tendering the amount of the underlying loan and pre-default interest [2] -- excluding the claim 27% penalty interest --which would have been sufficient to cure the default and reinstate the loan at the time of the non-judicial foreclosure sale.

As to the cause of action for unfair competition, this cause of action seeks injunctive relief and restitution. (1AC, P.P. 51, 53.) To the extent this seeks restitution of the subject real property, it is subject to the above tender requirement. As to the cause of action for financial elder abuse, this appears to seek only monetary damages, as recovery of the subject real property is not a remedy for this cause of action. (1AC, P.P. 58, 59.) As such, it is not a "real property claim [3] " and cannot support a lis pendens.

A lis pendens will be expunged without an undertaking if the court finds that the complaint does not contain a real property claim. (Code Civ. Proc., Sec. 405.31; Robert I. Weil and Ira A. Brown, California Practice Guide: Civil Procedure Before Trial, The Rutter Group, Sec. 9:429.) The judge weighs conflicting evidence in deciding whether plaintiff has sustained his burden. (Id. at Sec. 9:436.2.) As such, the motion to expunge is GRANTED. Pursuant to Civ. Proc. Code, Sec.Sec. 405.31 and 405.32, an undertaking is not required.

Nonetheless, the order expunging lis pendens may be ordered stayed pending a hearing on amount of undertaking pursuant to Code Civ. Proc., Sec. 405.34, as discussed below.

2. Plaintiffs' Action is Barred by Res Judicata. In light of the above ruling, the Court does not address Defendants' res judicata argument. This argument also seems more appropriate to a dispositive motion.

3. The Fifth Cause of Action Does Not State a Real Property Claim. The Court addressed this argument above.

4. Zoe Epstein, as Mr. Epstein's Successor, Does Not Have Standing Because Mr. Epstein Did Not Have Standing or Otherwise Failed to State a Claim. In light of the above ruling, the Court does not address this standing argument.

5. To the Extent the Court Does Not Expunge Lis Pendens No. 3, Defendants Request the Court Order Plaintiffs to Post an Undertaking Pursuant to Section 405.34. Civ. Proc. Code Sec. 405.34 provides: Subject to the provisions of Sections 405.31 and 405.32, at any time after a notice of pendency of action has been recorded, and regardless of whether a motion to expunge has been filed, the court may, upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title . . . .

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 affected party. An undertaking required pursuant to this section shall be of such nature and in such amount as the court may determine to be just. In its order requiring an undertaking, the court shall set a return date for the claimant to show compliance and if the claimant fails to show compliance on the return date, the court shall order the notice of pendency of action expunged without further notice or hearing.

Recovery on an undertaking required pursuant to this section may be had in an amount not to exceed the undertaking, pursuant to Section 996.440, upon a showing (a) that the claimant did not prevail on the real property claim and (b) that the person seeking recovery suffered damages as a result of the maintenance of the notice. In assessing these damages, the court shall not consider the claimant's intent or the presence or absence of probable cause. (Code Civ. Proc., Sec. 405.34 [bold emphasis added].)

Defendants request the Court require Plaintiffs to post an undertaking of $2,216,313.77 representing the amount of the indebtedness on the First Loan, Second Loan, and Third Loan as of July 15, 2026, is $2,190,887.44, and daily interest after July 15, 2026, is $591.31. (Rist Decl. P. 8, Ex. 10.) However, this assumes Defendants would sustain a complete loss of the lis pendens were improperly maintained. This does not account for the market value of the properties and probably sale price once judgment would be entered in favor of Defendants.

Instead, for the reasons discussed above, the Court finds that an appropriate amount of the undertaking would be the amount of the underlying loan and pre-default interest-- excluding the claim 27% penalty interest --which would have been sufficient to cure the default and reinstate the loan at the time of the non-judicial foreclosure sale. If Plaintiffs represent that they can realistically post this undertaking amount, then the Court will give the parties an opportunity to ascertain and brief this amount, in which case, the Court will stay the order expunging lis pendens and set this amount.

6. Defendants Request the Court Award Attorneys' Fees in Favor of Defendants and Against Plaintiffs. Code Civ. Proc. Sec. 405.38 provides: 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., Sec. 405.38.)

As noted above, Defendants motion to expunge is tentatively successful. The Declaration of Joel G. Weinberg indicates that his hourly rate is $510.00 and that he estimates 11 hours plus a $60 filing fee. The Court finds that the reasonable amount of attorney's fees incurred in bringing the motion to expunge lis pendens is $4,080 (8 total hours), plus a $60 filing fee for a total of $4,140. As such, Defendants' request for attorney's fees is GRANTED in the reduced amount of $4,140.

[1] Civ. Code Sec. 1916-2 establishes a maximum 12% annual interest rate for loans. The 1AC alleges a non-default yearly interest rate of 12%. (1AC, P.P. 12, 16, 20.)

[2] Civ. Code Sec. 1916-2 establishes a maximum 12% annual interest rate for loans. The 1AC alleges a non-default yearly interest rate of 12%. (1AC, P.P. 12, 16, 20.)

[3] As noted above: "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. (Civ. Proc. Code, Sec. 405.4.)

Case Number: 25STCV22757

Hearing Date: August 27, 2026

Dept: 734

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at DATE \@ "h:mm am/pm" 2:55 PM on DATE \@ "MMMM d, yyyy" August 26, 2026. Rule of Court 3.1308(a)(1) provides that a "tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given." The Court does not desire oral argument on the motion addressed herein. Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1).

No later than 4:00 p.m. on DATE \@ "MMMM d, yyyy" August 26, 2026, the moving and opposing parties must provide notice to ALL OTHER PARTIES and the staff of Department 734 whether the party intends to (1) appear and argue the motion, or (2) submit to the tentative ruling. Notice to Department 734 should be sent by email to [email protected], with opposing parties copied on the email. The high volume of telephone calls to Department 734 may delay the Court's receipt of notice, so telephonic notice to 213-830-0776 should be reserved for situations where parties are unable to give notice by email.

Plaintiff alleges that Defendant could not repair the vehicle to conform to warranties. The parties settled the case. Plaintiff moves for an award of attorney's fees, costs and expenses.

TENTATIVE RULING

Plaintiff Ronnie J. Adams motion for attorney's fees is GRANTED in the reduced amount of $12,000 and the motion for costs and expenses is GRANTED in the requested amount of $1,077.63, for a total amount of $13,077.63.

ANALYSIS

Motion For Attorney Fees, Costs and Expenses

Discussion

The Court has reviewed the moving, opposing and reply briefs filed by the parties, but only addresses the points which the Court deems to be material to the