United States District Court, N.D. California, San Francisco Division
November 25, 2014
JOSE A. JARA, Plaintiff,
AURORA LOAN SERVICES, LLC, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO EXPUNGE LIS PENDENS [Re: ECF No. 101]
LAUREL BEELER, Magistrate Judge.
Jose Jara sued Aurora Loan Services, LLC ("Aurora") and Mortgage Electronic Registration Systems ("MERS") (collectively, "Defendants") for violation of federal and state law in connection with the foreclosure and sale of his property located at 330 Arbor Drive, South San Francisco, California. (Fourth Amended Complaint, ECF No. 72, ¶ 1, Request for Judicial Notice ("RJN"), ECF No. 102-3, Ex. 14, ¶ 1.) In connection with this action, Mr. Jara filed a lis pendens against his property in the Official Records of the County of San Mateo. (RJN, ECF No. 102-1, Ex. 3 at 20.) The court dismissed Mr. Jara's Fourth Amended Complaint with prejudice and entered judgment in favor of Defendants and against Mr. Jara in March 2012. (3/30/12 Order, ECF No. 87; 3/30/12 Judgment, ECF No. 88.) Mr. Jara appealed the court's final judgment to the United States Court of Appeals for the Ninth Circuit. (Notice of Appeal, ECF No. 91.) The Ninth Circuit has yet to rule on this court's final judgment against Mr. Jara. (5/21/14 Order of USCA, ECF No. 100.) Defendants now move to expunge the lis pendens. (Motion to Expunge Lis Pendens, ECF No. 101.) Mr. Jara did not file an opposition responding to Defendants' motion, and his time for doing so has passed.
Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument and vacates the December 4, 2014 hearing. For the reasons explained below, the court GRANTS Defendants' motion to expunge the lis pendens.
Federal courts look to state law regarding matters pertaining to lis pendens. See 28 U.S.C. § 1964. "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. Proc. § 405.20. The purpose of a lis pendens is to give "constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice." BGJ Associates, LLC v. Super. Ct., 75 Cal.App.4th 952, 966 (2000). "Its effect is that anyone acquiring an interest in the property after the action was filed will be bound by the judgment." Id. Once filed, a lis pendens clouds the title and, in effect, prevents the property's transfer until the litigation is resolved or the lis pendens is expunged. Id. Because of the "serious consequences flowing from it, " lis pendens "is a provisional remedy[, ] which should be applied narrowly." Id. at 967.
A motion for expungement may be brought at any time after notice of pendency has been recorded. Cal. Code Civ. Proc. § 405.30. The party who recorded the notice of lis pendens bears the burden of proof in opposing expungement. Id. A lis pendens shall be expunged if the court finds either that the pleading on which the notice is based does not contain a real property claim or that the claimant failed to establish by a preponderance of the evidence the probable validity of the real property claim. Cal. Code Civ. Proc. §§ 405.31, 405.32; see Hunting World, Inc. v. Super. Ct. of S.F., 22 Cal.App.4th 67, 70-71 (1994). "[O]n a motion to expunge a lis pendens after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not the appellate court will reverse the judgment." Amalgamated Bank v. Super. Ct., 149 Cal.App.4th 1003, 1015 (2007).
Here, Mr. Jara did not oppose expunging the lis pendens that he recorded against his property; thus, he failed to meet his burden of proving by a preponderance of evidence the probable validity of a real property claim. Cua v. Mortg. Elec. Registration Sys., Inc., No. C 09-01605 SBA, 2012 WL 2792437, at *2 (N.D. Cal. July 9, 2012) (citing Gwaduri v. I.N.S., 362 F.3d 1144, 1147 n.3 (9th Cir. 2004)). Although there is an appeal pending that "may affect title to or possession of the real property described in the lis pendens [, ]" Mr. Jara has not provided any reasons "why the Ninth Circuit would reverse this [c]ourt's decisions" to dismiss Mr. Jara's Fourth Amended Complaint and enter a judgment in favor of Defendants. Masson v. Selene Fin. LP, No. 12-05335 SC, 2013 WL 4427116, at *2 (N.D. Cal. Aug. 15, 2013). Mr. Jara "failed to meet or otherwise address [his] burden here, [therefore, ] Defendants' [m]otion is GRANTED." Id.
Based on the foregoing, the court GRANTS Defendants' motion to expunge the lis pendens recorded against the property located at 330 Arbor Drive, South San Francisco, California.
IT IS SO ORDERED.