Filed 7/17/26
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PRIEL GRIMBERG, D085888
Beneficiary, Plaintiff, and
Respondent,
(Super. Ct. No. 37-2022-
v. 00043394-PR-TR-CTL)
LIBBY POUR,
Objector and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Olga Alvarez, Judge. Dismissed.
Correia Law Firm and Deja A. Correia for Objector and Appellant.
Law Office of Kevin E. Kravets and Kevin E. Kravets for Plaintiff and
Respondent.
I. INTRODUCTION
Objector and appellant Libby Pour temporarily served as the successor
trustee to her aunt Priel Grimberg’s irrevocable trust. The guardian ad litem
appointed to represent Priel’s interests requested that the probate court
authorize the recordation of lis pendens against Pour’s real properties after
the guardian ad litem determined Pour had allegedly used trust assets for
her own benefit. Pour opposed the request on the ground that the probate
case did not involve any real property claims against her as required by the
lis pendens statutes. (See Code Civ. Proc.,1 § 405 et seq.) The probate court
granted the guardian ad litem’s request and directed him to record the lis
pendens against Pour’s real properties.
In this direct appeal, Pour argues that “the probate court’s order should
be reversed” and “the lis pendens should be expunged.” Although the lis
pendens statutes generally declare orders involving expungement requests
nonappeable — the exclusive remedy is by petition for writ of mandate
brought within 20 days of the challenged order (§ 405.39) — Pour maintains
the order is appealable under more general Probate Code provisions (see
Prob. Code, § 1300, subds. (a) [orders “[d]irecting, authorizing, approving, or
confirming the . . . encumbrance . . . of property” are appealable], (c) [orders
“[a]uthorizing, instructing, or directing a fiduciary” are appealable]). We are
not persuaded.
Because the Probate Code expressly authorizes use of the lis pendens
statutes (Prob. Code, § 1004) — indeed, Pour invokes them in this appeal —
those more specific statutes govern (see Edais v. Superior Court (2023)
87 Cal.App.5th 530, 542 (Edais) [“a canon of statutory construction instructs
that, where statutes conflict, ‘ “ ‘more specific provisions take precedence over
more general ones’ ” ’ ”]; Prob. Code, § 1000, subd. (a) [“Except to the extent
that this code provides applicable rules, the rules of practice applicable to
civil actions . . . apply to, and constitute the rules of practice in, proceedings
under this code”]). The challenged order is therefore not appealable. And
even if we were to exercise our discretion to treat Pour’s appeal as a petition
1 Statutory references are to the Code of Civil Procedure unless
otherwise indicated.
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for writ of mandate, it would be untimely under the lis pendens statute’s 20-
day limitation period.
Accordingly, the appeal is dismissed.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Trust
Effective October 10, 2017, Priel Grimberg and Jacob Grimberg
executed an irrevocable living trust agreement titled, “The Cohen Family
Trust” (the Trust). Priel and Jacob were the Trust’s settlors, trustees, and
beneficiaries. The Trust provided that, upon Priel and Jacob’s deaths, their
son Arie Tomer Grimberg would become the sole beneficiary. And, if while
alive, Priel and Jacob became unable to serve as trustees, the Trust named
Sylvia R. as their successor trustee.
The Trust’s primary assets were two residential units on Clairemont
Mesa Boulevard. Priel and Jacob lived in one unit (Unit 26) and earned
rental income by renting out the other (Unit 27).
Jacob died in July 2020. On August 24, 2021, Priel purportedly signed
an amendment to the Trust agreement (the Amendment) that designated her
niece, Pour, as the Trust’s successor trustee. On November 2, 2021, Priel
purportedly signed a “notice of resignation of trustee” (the Resignation
Notice) by which she resigned as trustee of the Trust and confirmed Pour’s
role as trustee.
B. Arie’s Petitions
1. Validity of Trust Instruments
On October 26, 2022, Arie filed a petition in probate court seeking to
determine the validity of the Amendment and the Resignation Notice. Arie
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alleged that Priel lacked capacity to execute the Amendment because she was
distraught upon Jacob’s death and was suffering from dementia. Arie further
alleged that Pour “manipulated Priel into executing the [Amendment].”
Arie’s petition also included a claim for financial elder abuse against
Pour and sought to impose a constructive trust over Trust assets in Pour’s
possession. Arie alleged that whereas “during Jacob’s life, the monthly rental
income from Unit #27 was used exclusively for payment of the mortgages on
Unit #26 and Unit #27, and any remaining money was saved,” after Pour
became Trustee she diverted the rental income from Unit 27, and Unit 26 fell
into foreclosure. Arie further alleged that Pour caused Unit 27 to be sold in
October 2022 at a below-market sales price.
2. Removal of Pour as Trustee
On November 5, 2023, Arie filed a separate petition in probate court
seeking to remove Pour as trustee and to surcharge her. This petition alleged
that the sale of Unit 27 netted $218,000 in profit and that Pour “did nothing
productive with the money.” Instead, the petition alleged, Pour used the
proceeds for her own benefit, including by withdrawing more than $60,000 in
cash and transferring more than $60,000 to her personal bank account.
C. Guardian Ad Litem Proceedings
On February 28, 2024, the probate court appointed attorney Kevin
Kravets as Priel’s guardian ad litem. The next day, Arie and Pour stipulated
to appoint a professional fiduciary as trustee of the Trust. The court adopted
the stipulation as an order.
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1. First Lis Pendens Order
On May 15, 2024, Kravets filed a report with the probate court
recommending that the court surcharge Priel “at least $229,838.18 for
unexplained distributions from the trust.” Based on his review of the Trust
accounts, Kravets identified over $66,000 in unaccounted-for cash
withdrawals and more than $122,000 in trust assets transferred directly to
Pour. Pour had requested, but was denied, a bond to serve as security for her
service as trustee. Therefore, as security for the pending surcharge, Kravets
requested that the court “authoriz[e] the clouding of title on all real
properties currently owned by [Pour],” including three identified properties in
Los Angeles County (the Los Angeles properties). Kravets argued this was
necessary “to ensure that . . . Pour [was] unable to move such assets outside
the reach of potential creditors (i.e. the trustee of the Trust) to satisfy any
potential surcharge and to ensure the protection of [Priel] and her estate.”
Pour opposed the requests in Kravets’s report. She disputed the
accuracy of Kravets’s accounting and insisted she had used trust assets for
legitimate purposes. She also opposed the request to cloud title to her real
property, arguing the request was “premature” because it was “based only on
[Kravets’s] draft accounting.”
On May 21, 2024, following an unreported hearing, the probate court
entered a minute order that “directed and authorized [Kravets] to record
appropriate documentation clouding title on all real properties currently
owned by . . . Pour.” Pour did not appeal this order.
On June 26, 2024, Kravets recorded lis pendens against two of Pour’s
Los Angeles properties. On August 6, 2024, Kravets recorded a lis pendens
against the third Los Angeles property.
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2. Withdrawal of Lis Pendens
On May 21, 2024 — the same day the probate court directed and
authorized the recording of lis pendens against Pour’s properties — Pour
advised her attorney in the probate case that she had filed for bankruptcy
protection a few months earlier. Pour’s attorney notified Kravets of this
development.
On August 5, 2024, Pour’s bankruptcy attorney emailed Kravets,
advising that the lis pendens violated the automatic bankruptcy stay and
demanding withdrawal of the lis pendens. Kravets replied that he was
amenable to withdrawing the lis pendens and requested additional
information about Pour’s bankruptcy case.
Following an unreported August 12, 2024 case management conference,
the probate court entered a minute order directing Kravets “to submit ex
parte request regarding lis pendens if there is a stay on the bankruptcy
matter.”
A few weeks later, on September 3, 2024, when Kravets still had not
withdrawn the lis pendens, Pour filed an ex parte request in the probate
court seeking to expunge the lis pendens. Pour argued expungement was
warranted both because the automatic bankruptcy stay precluded recording
lis pendens in the first place, and because the lis pendens did not relate to a
real property claim as required by the lis pendens statutes. Pour requested
that the court order Kravets to pay her attorney fees either under the lis
pendens statutes (§ 405.38) or as a sanction for bad faith litigation tactics
(§ 128.5).
At the unreported September 6, 2024 hearing on Pour’s ex parte
request, the probate court authorized Kravets to consult with a bankruptcy
attorney to determine whether an automatic bankruptcy stay applied.
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Two weeks later, after undertaking this consultation, Kravets
confirmed to the court that a bankruptcy stay was in effect. Accordingly,
Kravets requested that the court authorize him to withdraw the lis pendens
recorded against the Los Angeles properties.
After an unreported September 24, 2024 hearing, the probate court
entered a minute order directing Kravets “to remove all three lis pendens
issued.” The court denied Pour’s request for attorney fees, finding that
Kravets was “justified in the actions taken.”
3. Re-recorded Lis Pendens
On November 19, 2024, Kravets filed an ex parte request for authority
to re-record lis pendens against Pour’s properties. Kravets explained that the
bankruptcy court had dismissed Pour’s bankruptcy case on November 10,
2024, which terminated the automatic bankruptcy stay.
Pour opposed Kravets’s request, stating she had refiled for bankruptcy
protection, which resulted in another automatic stay that precluded recording
lis pendens. Pour also argued that lis pendens were “inappropriate” because
the probate case did not involve any “claim to [her] real property interest[s]”
as required by the lis pendens statutes.
On January 10, 2025, Kravets filed a supplement to his ex parte
request, updating the probate court on the status of Pour’s bankruptcy.
Kravets advised that because Pour had filed for bankruptcy protection four
times since 2022, the automatic bankruptcy stay lasted only 30 days and had
already expired.
Pour filed a further opposition reiterating her arguments based on the
automatic bankruptcy stay and the lack of a claim involving her real
property. She explicitly requested that the probate court “make a ruling on
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the issue of whether no real property claim in the underlying matter
prohibits the filing of lis pendens against [Pour]’s properties.”
Following an unreported hearing on January 14, 2025, the probate
court granted Kravets’s request and entered an order that “directed and
authorized [him] to re-record appropriate documentation clouding title on all
real properties currently owned by [Pour],” including the Los Angeles
properties.
On March 14, 2025, Pour appealed the probate court’s January 14,
2025 order authorizing the re-recording of lis pendens.
III. DISCUSSION
Pour contends the probate court erred by directing Kravets to record lis
pendens against her properties because the probate case does not involve a
real property claim as required by the lis pendens statutes. We conclude the
appeal must be dismissed because the challenged order is not appealable.
(§ 405.39.)
A. Lis Pendens Framework
“A lis pendens — also called a notice of pendency of action — is a
document filed with a county recorder that provides constructive notice of a
pending lawsuit affecting the real property described in the notice.” (Shoker
v. Superior Court (2022) 81 Cal.App.5th 271, 275; see Kirkeby v. Superior
Court (2004) 33 Cal.4th 642, 647 (Kirkeby).) “Any party may record a lis
pendens when the lawsuit involves a ‘real property claim.’ ” (Shoker, at
p. 275, quoting § 405.20 [“A party to an action who asserts a real property
claim may record a notice of pendency of action in which that real property
claim is alleged.”].) Section 405.4 defines a “ ‘[r]eal property claim’ ” as “the
cause or causes of action in a pleading which would, if meritorious, affect . . .
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title to, or the right to possession of, specific real property.” “A lis pendens
gives notice that the judgment will be binding on persons later acquiring an
interest in that property.” (Shoker, at p. 275; accord, Newell v. Superior
Court (2024) 107 Cal.App.5th 728, 734 (Newell).) “An attorney of record in an
action may sign a notice of pendency of action. Alternatively, a judge of the
court in which an action that includes a real property claim is pending may,
upon request of a party thereto, approve a notice of pendency of action.”
(§ 405.21.)
“Section 405.30 allows a property owner to remove an improperly
recorded lis pendens by filing a motion to expunge.” (Newell, supra,
107 Cal.App.5th at p. 735.)2 “There are several statutory bases for
expungement of a lis pendens.” (Kirkeby, supra, 33 Cal.4th at p. 647.) As
relevant here, a court must expunge a lis pendens “if the court finds that the
pleading on which the notice is based does not contain a real property claim.”
(§ 405.31; see also § 405.32 [“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”].)
“Under section 405.39, an order granting or denying a motion to
expunge a lis pendens is not an appealable order.” (Woodridge Escondido
Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 577,
fn. omitted; see Mix v. Superior Court (2004) 124 Cal.App.4th 987, 996
[“Decisions on motions to expunge lis pendens fall into that class of trial court
2 Section 405.30 states: “At 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.”
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orders which are expressly not appealable”].)3 Instead, “the exclusive means
of obtaining review of an order granting or denying a motion to expunge a lis
pendens” (Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th
259, 262) is by a petition for writ of mandate “filed and served within 20 days
of service of written notice of the [challenged] order” (§ 405.39).
B. Appealability Principles
“A reviewing court has jurisdiction over a direct appeal only when there
is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 696.) “A reviewing court must
raise the issue on its own initiative whenever a doubt exists as to whether
the trial court has entered a final judgment or other order or judgment made
appealable by . . . section 904.1.” (Jennings v. Marralle (1994) 8 Cal.4th
121, 126 (Jennings).) “ ‘A “reviewing court has inherent power . . . to dismiss
an appeal which it cannot or should not hear and determine.” ’ ”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8.)
“The right to appeal is wholly statutory.” (Dana Point Safe Harbor
Collective v. Superior Court (2010) 51 Cal.4th 1, 5; see In re Henry S. (2006)
140 Cal.App.4th 248, 255 [because “[t]he right to appeal is purely
3 Section 405.39 states in full: “No order or other action of the court
under this chapter shall be appealable. Any party aggrieved by an order
made on a motion under this chapter may petition the proper reviewing court
to review the order by writ of mandate. The petition for writ of mandate
shall be filed and served within 20 days of service of written notice of the
order by the court or any party. The court which issued the order may,
within the initial 20-day period, extend the initial 20-day period for one
additional period not to exceed 10 days. A copy of the petition for writ of
mandate shall be delivered to the clerk of the court which issued the order
with a request that it be placed in the court file.”
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statutory, . . . parties cannot enlarge or restrict appellate jurisdiction by
consent”].) “[S]ection 904.1 lists appealable judgments and orders.” (Ibid.)
Under subdivision (a)(10) of section 904.1, “[a]n appeal . . . may be taken from
[¶] . . . [¶] an order made appealable by the Probate Code.”
As relevant here, Probate Code section 1300 states: “In all proceedings
governed by this code, an appeal may be taken from the making of, or the
refusal to make, any of the following orders: [¶] (a) Directing, authorizing,
approving, or confirming the sale, lease, encumbrance, grant of an option,
purchase, conveyance, or exchange of property. [¶] . . . [¶] (c) Authorizing,
instructing, or directing a fiduciary, or approving or confirming the acts of a
fiduciary.”
C. Analysis
A doubt exists here about the appealability of the probate court’s
January 14, 2025 order, because section 405.39 expressly provides that “[n]o
order or other action of the court under [chapter 3 of title 4.5 of part 2 of the
Code of Civil Procedure, addressing expungement of lis pendens] shall be
appealable.” We therefore directed the parties to address the appealability of
the order.
Kravets does not contest the order’s appealability. Notwithstanding
Kravets’s position, we must independently satisfy ourselves that the order is
appealable. (See Jennings, supra, 8 Cal.4th at p. 126; In re Henry S., supra,
140 Cal.App.4th at p. 255.)
Pour argues the order is appealable under Probate Code section 1300,
subdivision (a) because the order “[d]irect[s], authoriz[es], approv[es], or
confirm[s] the . . . encumbrance . . . of property”; and under subdivision (c) of
that section because it “[a]uthoriz[es], instruct[s], or direct[s] a fiduciary.”
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Assuming without deciding that a lis pendens is an “encumbrance” within the
meaning of Probate Code section 1300, subdivision (a), and that a guardian
ad litem is “a fiduciary” within the meaning of subdivision (c) of that section,
we are not persuaded that — in the context of a proceeding challenging lis
pendens — these general Probate Code appealability provisions prevail over
the more specific lis pendens appealability statue. (See Edais, supra,
87 Cal.App.5th at p. 542 [“a canon of statutory construction instructs that,
where statutes conflict, ‘ “ ‘more specific provisions take precedence over more
general ones’ ” ’ ”].)
To the contrary, we conclude the Probate Code specifies that lis
pendens proceedings in probate court matters are subject to the Code of Civil
Procedure’s lis pendens provisions. Probate Code section 1000,
subdivision (a) states the general rule that, unless the Probate Code
“provides applicable rules, the rules of practice applicable to civil actions . . .
apply to, and constitute the rules of practice in, proceedings under [the
Probate Code].” Pour has cited no Probate Code section that provides rules
applicable to lis pendens proceedings. Indeed, the Probate Code expressly
refers to the Code of Civil Procedure’s lis pendens rules. Specifically, Probate
Code section 1004 provides: “If a proceeding under this code affects the title
to or the right of possession of real property, notice of the pendency of the
proceeding may be filed pursuant to Title 4.5 (commencing with Section 405)
of Part 2 of the Code of Civil Procedure.” Title 4.5 of part 2 of the Code of
Civil Procedure includes section 405.39, which specifies that “[n]o order or
other action of the court under this chapter shall be appealable.”
We acknowledge that section 405.39 refers to orders or actions
involving expungement of lis pendens and that the challenged order is not,
strictly speaking, one involving expungement of a lis pendens. Rather, the
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challenged order directed Kravets to record a lis pendens. In addition,
the authority to obtain court approval to record a lis pendens arises from
section 405.21, which is in chapter 2 of title 4.5 of part 2 of the Code of Civil
Procedure, not chapter 3, which is where section 405.39’s nonappealability
provision is located. We are nevertheless unpersuaded that the order is
appealable.
The means by which to challenge an improper lis pendens is a motion
to expunge it. (See Newell, supra, 107 Cal.App.5th at p. 735 [“Section 405.30
allows a property owner to remove an improperly recorded lis pendens by
filing a motion to expunge.”]; Shah v. McMahon (2007) 148 Cal.App.4th
526, 529 [“the lis pendens procedure provides a means by which a court may
dispose of meritless real estate claims at the preliminary stage of a case, and
an appellate court may review that order by way of a petition for writ of
mandate”].) Therefore, if Pour believed the lis pendens was improper, she
should have moved in the probate court to expunge it. The probate court’s
ruling on that motion would not have been appealable. (§ 405.39.) Pour
cannot manufacture appellate jurisdiction by failing to take a necessary step
in the probate court that would unquestionably have resulted in a
nonappealable order. (See, e.g., Spellens v. Spellens (1957) 49 Cal.2d
210, 228 [“ ‘[W]hen a judgment or order is not appealable, it cannot be made
reviewable by the device of moving to set it aside and appealing from an
order denying the motion. This proposition stems from the rule that forbids a
party to do indirectly what he may not do directly.’ ”].)
Indeed, to allow otherwise would lead to an anomalous result. (See
PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017)
14 Cal.App.5th 156, 187 [“We must, of course, interpret statutes to avoid
anomalous or absurd results that the Legislature could not have intended
13
and that would frustrate the Legislature’s intent.”].) The Probate Code
specifies that lis pendens recorded in connection with probate matters are
governed by the Code of Civil Procedure. The Code of Civil Procedure sets
forth a generally applicable expedited writ review process for challenging lis
pendens. Yet, using Pour’s approach, that procedure inexplicably would not
apply to challenges stemming from lis pendens recorded in connection with
probate court proceedings. We doubt the Legislature intended this
inconsistent result.
Additionally, looking not at the form of the challenged order but at the
nature of its legal effect, we conclude the order is nonappealable under
section 405.39. (See Estate of Martin (1999) 72 Cal.App.4th 1438, 1442 [“the
appealability of an order of the probate court is determined not from its form,
but from its legal effect”].) Pour opposed Kravets’s request for authority to
record lis pendens on the basis that the petitions in the probate case did not
allege a real property claim. This is the basis on which she would have
moved to expunge the lis pendens. (§§ 405.31 [the court must expunge a lis
pendens if the “pleading . . . does not contain a real property claim”], 405.32
[the court must expunge a lis pendens if the “claimant has not established by
a preponderance of the evidence the probable validity of the real property
claim”].) Indeed, in this appeal, Pour expressly argues that “the lis pendens
should be expunged and attorney’s fees and costs awarded pursuant to . . .
section 405.31.”
We therefore conclude that the challenged order is nonappealable
under section 405.39.
Even if we were to exercise our discretion to treat Pour’s notice of
appeal as a petition for writ of mandate (see Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 745), we would deny the petition as untimely.
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Under section 405.39, a petition for writ of mandate challenging an order or
other action on a lis pendens must be “filed and served within 20 days of
service of written notice of the order.” This 20-day period can be extended by
“one additional period not to exceed 10 days,” thus establishing an outside
filing deadline of 30 days following notice of the challenged order. Pour did
not file her notice of appeal challenging the January 14, 2025 order until
March 14, 2025 — nearly 60 days later and about 30 days beyond the
statutory deadline. Therefore, even if treated as a writ petition, it would be
untimely.
Accordingly, we will dismiss the appeal.
IV. DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on
appeal.
RUBIN, J.
WE CONCUR:
DO, Acting P. J.
CASTILLO, J.
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