UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 5, 2011
KRISTI C. OLIVAS,
RECONTRUST COMPANY, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., DEFENDANTS.
The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING EX PARTE APPLICATION FOR NOTICE OF LIS PENDENS
On July 28, the Court accepted by discrepancy order a request from Plaintiff asking that the Court approve a notice of lis pendens (i.e., notice of pendency of action) so that Plaintiff could record it. Because Plaintiff is proceeding pro se, approval by the Court is required before the notice can be recorded. Cal. Civ. Proc. Code § 405.21. Defendants then filed a response in opposition pointing out that this action does not present a "real property claim" as defined in Cal. Civ. Proc. Code § 405.4, because it seeks monetary damages only, and does not affect title or right to possession of real property.
Assuming Plaintiff prevails in this action, she will be entitled to monetary damages, but the title or possessory rights of real property would be unaffected. Section 405.4 also permits lis pendens notices where the causes of action, if meritorious, would affect use of an easement, but that is not implicated here either. Defendants are therefore correct that no "real property claim," as defined in § 405.4, is presented here.
Because the complaint does not raise a real property claim, meritorious or otherwise, no notice of lis pendens is appropriate. See Cal. Civ. Proc. Code §§ 405.2 (defining notice of lis pendens, as "a notice of the pendency of an action in which a real property claim is alleged."); 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.") The ex parte application (Docket no. 12) is therefore DENIED.
IT IS SO ORDERED.
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