UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 7, 2010
ERNESTO AMBRIZ, PLAINTIFF,
ACCREDITED HOME LENDERS, INC., DEFENDANTS
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING AS MOOT MOTION TO DISMISS FIRST AMENDED COMPLAINT [doc. #13]; GRANTING MOTION TO EXPUNGE LIS PENDENS [doc. #14]; and GRANTING EX PARTE MOTION FOR REQUEST FOR RULING [doc. #25]
On May 28, 2010, defendants Vericrest Financial, Inc. fka The CIT Group and The Bank of New York Melon fka The Bank of New York filed motions to dismiss the first amended complaint ("FAC") and to expunge lis pendens. Plaintiff failed to oppose the motions as required under the Civil Local Rules. Instead, on August 24, 2010, plaintiff filed a notice of voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a). The notice of voluntary dismissal moots defendants' motion to dismiss; however, dismissal of the complaint does not expunge the recorded lis pendens. As a result, defendants request a ruling on the motion to expunge the lis pendens.
Plaintiff recorded a lis pendens on the property at issue under California Civil Code §§ 405.31 and 405.32. A lis pendens effectively prevents a sale or encumbrance of the property until litigation is resolved or the lis pendens is expunged. See Kirkeby v. Superior Court, 33 Cal. 4th 642. 651 (2004).
A court "shall order the notice [of pendency] expunged if . . . the pleading on which the notice is based does not contain a real property claim." CAL. CIV. CODE § 405.31. A "real property claim" is defined, inter alia, as a cause of action "which would, if meritorious, affect . . . title to, or the right to possession of, specific real property. . . ." CAL. CIV. CODE § 405.4. A plaintiff bears the burden of establishing, by a preponderance of the evidence, the probable validity of the claims.
Because the operative complaint has been voluntarily dismissed, plaintiff has alleged no "real property claim." Accordingly, the lis pendens is properly expunged.
Based on the foregoing, IT IS ORDERED
1. Defendants' motion to expunge lis pendens is hereby GRANTED [doc. #14];
2. Defendants' motion to dismiss the first amended complaint is DENIED AS MOOT [doc. #13];
3. The Lis Pendens recorded on December 24, 2009, as Instrument No. 20090301187 in the official records of San Diego County shall be expunged from the official records, and a copy of this Order may be recorded in the official records.
The Lis Pendens concerns the real property commonly known as 507 Twin Palm Circle, Fallbrook, California 92028, located in San Diego County with the following legal description:
THAT PORTION OF THE WEST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 24, TOWNSHIP 9 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLOT DESCRIED AS FOLLOWS: BEGINNING ON A POINT ON THE WEST LINE OF SAID WEST HALF OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER WHICH IS SOUTH 00 DEGREES 22/45" WEST, 136.92 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE ALONG SAID WEST LINE SOUTH 00 DEGREES 22'45" WEST 73.93 FEET; THENCE PARALLEL WITH THE NORTH LINE OF SAID WEST HALF OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER SOUTH 89 DEGREES 07"30" EAST 134.35 FEET; THENCE NORTH 00 DEGREES 22'45" EAST 79.79 FEET TO A LINE WHICH BEARS SOUTH 89 DEGREES 07'30" EAST FROM THE POINT OF BEGINNING; THENCE NORTH 89 DEGREES 07'30" WEST 134 FEET TO THE BEGINNING.
PARCEL 2: AN EASEMENT AND RIGHT OF WAY FOR ROAD AND PIPE LINE PURPOSES TO BE USED IN COMMON WITH THE GRANTORS AND OTHERS ACROSS A STRIP OF LAND 21.00 FEET IN WIDTH LYING NORTHERLY OF AND ADJOINING THE NORTH LINE OF PARCEL 1, ABOVE."
4. Defendants' ex parte motion for request for ruling is GRANTED [doc. #25]; and
5. The Clerk of the Court shall maintain this case as an open case until resolution of the order to show cause why sanctions should not be imposed upon plaintiff's counsel Kent C. Wilson.
IT IS SO ORDERED.
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