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Brian Kennar, An Individual, and Kathleen v. E. Kelly Et Als

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 11, 2011

BRIAN KENNAR, AN INDIVIDUAL, AND KATHLEEN
KENNER, AN INDIVIDUAL, PLAINTIFFS,
v.
E. KELLY ET ALS.,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING PLAINTIFFS' EX PARTE MOTION FOR ORDER GRANTING APPROVAL OF LIS PENDENS NOTICE [Doc. No. 4.]

On July 12, 2011, Plaintiffs Brian Kennar and Kathleen Kennar, proceeding pro se, filed a Complaint against ten individual IRS employees ("IRS Defendants"); Barbara Dunn, an attorney for a defendant in another prior lawsuit; her firm, Lacey, Dunn and Do ("Dunn Defendants"); the Fireman's Fund Insurance Company; and the United States of America for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). On July 14, 2011, Plaintiffs filed an ex parte motion for an order granting approval of Plaintiffs' Lis Pendens Notice.

Federal courts look to state law regarding matters pertaining to lis pendens. See 28 U.S.C. § 1964*fn1 Under California Code of Civil Procedure section 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." Cal. Code Civ. P. § 405.20. A "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 . . . ." Cal. Code Civ. P. § 405.4. The complaint must "set forth some cause of action affecting the title or right of possession of the specific real property described in the lis pendens." Brownlee v. Vang, 206 Cal. App. 2d 814, 817 (1962). "A lis pendens effectively prevents a sale or encumbrance of the property until the litigation is resolved or the lis pendens is expunged." Farias v. FCM Corp., 2010 WL 4806894, at 4 (S.D.Cal. 2010).

Here, the Complaint alleges a RICO action against all Defendants. Plaintiffs allege that all Defendants' fraudulent and dishonest actions resulted in loss of settlement funds and defeated Plaintiffs' settlement efforts with the IRS on their federal tax liabilities. (Dkt. No. 1.) As a result, Plaintiffs allege that the United States has noticed a lien against Plaintiffs' property and the property is to be sold at an auction on August 1, 2011. (Compl. ¶¶ 113, 114.) The Court concludes that Plaintiffs have alleged a real property claim in its Complaint. Accordingly, the Court GRANTS Plaintiffs' ex parte motion for order granting approval of lis pendens notice.

IT IS SO ORDERED.


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