United States District Court, N.D. California
ORDER GRANTING MOTION TO EXPUNGE NOTICE OF PENDENCY
OF ACTION RE: DKT. NO. 119
A. WESTMORE United States Magistrate Judge.
Mary Ng filed the instant suit against Defendants U.S. Bank,
NA, Select Portfolio Servicing Inc. ("SPS"), and
Quality Loan Service Corporation ("QLS"), alleging
that Defendants violated various state and federal laws in
transferring a deed of trust on Plaintiff's home and
initiating foreclosure proceedings. Three motions to dismiss
were filed in the case, as well as a motion for a temporary
restraining order. (Dkt. Nos. 15, 47, 58, 75, 88.) On
September 26, 2016, the Court granted Defendants' motion
to dismiss Plaintiff's Second Amended Complaint in full
and without leave to amend, and entered judgment accordingly.
(Dkt. Nos. 86, 87.)
January 24, 2017, Defendants U.S. Bank and SPS filed a motion
to expunge a lis pendens, which was recorded by Plaintiff on
September 20, 2016. (Defs. Mot., Dkt. No. 119; see
also Kress Decl., Exh. A, Dkt. No. 119-1.) This is the
second motion to expunge filed in this action; Defendants
previously filed a motion to expunge the lis pendens recorded
by Plaintiff on August 1, 2016, which the Court granted on
December 8, 2016. (Ord. at 1, Dkt. No. 116.) As with the
prior motion, the Court deemed the matter suitable for
disposition without hearing pursuant to Civil Local Rule
7-1(b) and vacated the hearing that was set for March 2,
2017. (Dkt. No. 122.) Having considered the papers filed by
the parties and the relevant legal authority, the Court
GRANTS the motion to expunge for the following reasons.
Untimely Filing of Opposition
initial matter, the Court strikes Plaintiff's opposition
as untimely filed. Civil Local Rule No. 7-3(a) requires that
"[t]he opposition must be filed and served not more than
14 days after the motion was filed." Here,
Plaintiff's opposition was due by February 7, 2017, but
Plaintiff did not file an opposition until February 17, 2017.
(See Plf.'s Opp'n, Dkt. No. 120.) Plaintiff
provides no reason for her lack of diligence, and the Court
cannot conceive of any justification when the majority of her
opposition is copied and pasted from her opposition to the
first motion to expunge. (Compare Plf.'s Opp'n
at 3-6 with Dkt. No. 102 at 2-3, 6.) The remainder
of the opposition repeats arguments made in Plaintiff's
opposition to the motion for attorney's fees.
(See Dkt. No. 101 at 3-5.)
Court might be inclined to overlook the late filing if not
for the fact that this is the third motion Plaintiff has
failed to timely oppose. Moreover, the Court previously
cautioned Plaintiff about her untimely filings. After
Plaintiff failed to timely oppose Defendants' motion for
attorney's fees, the Court issued an order to show cause,
requiring Plaintiff's counsel to explain her failure to
timely oppose. (Dkt. No. 95.) Plaintiff's counsel
explained that she failed to correctly calendar the
opposition deadline, relying on "the Central District
Court's deadlines and procedures." (Dkt. No. 100
¶ 5.) In discharging the order to show cause, the Court
warned Plaintiff's counsel "that she must comply
with the Northern District of California's Local
Rules." (Dkt. No. 103 at 1.) Thus, Plaintiff's
counsel was on notice of her obligation to comply with this
district's local rules, but once again failed to do so.
The Court therefore strikes Plaintiff's opposition as
Court's standing order states: "[t]he failure of the
opposing party to file a memorandum of points and authorities
in opposition to any motion shall constitute consent
to the granting of the motion." (Westmore Standing Ord.
¶ 22 (emphasis added).) "[N]ot filing an opposition
until [ten] days after it is due is a failure to file within
the meaning of Standing Order [Paragraph 22]."
Woodfin Suite Hotels, LLC v. City of Emeryville, No.
C 07-1719-SBA, 2008 U.S. Dist. LEXIS 5394, at *8 (N.D. Cal.
Jan. 14, 2008); see also Woodfin Suite Hotels, LLC v.
City of Emeryville, No. C 07-1719-SBA, 2007 WL 1655792,
at *4 (N.D. Cal. June 7, 2007) (striking opposition that was
not timely filed where the plaintiff did not request leave to
file after the date required by the local rules and offered
no explanation for its untimely filing, and granting the
motion to dismiss based on the failure to oppose). Thus, the
Court GRANTS Defendants' motion as unopposed.
alternative, the Court GRANTS Defendants' motion on the
merits. First, as with the August 1, 2016 lis pendens,
Plaintiff did not comply with the service and filing
requirements of California Code of Civil Procedure 405.22.
Section 405.22 requires that prior to recordation of the lis
pendens, the claimant "shall . . . cause a copy of the
notice to be mailed, by registered or certified mail, return
receipt requested, to all known addresses of the parties to
whom the real property claim is adverse and to all owners of
record of the real property affected by the real property
claim . . . ." Following recordation, a copy of the lis
pendens must be field with the court in which the action is
pending, and service made immediately upon each adverse party
later joined in the action. Cal. Civ. Proc. Code §
405.22. Failure to meet the requirements of Section 405.22
renders the lis pendens void and invalid as to any adverse
party or owner of record. Cal. Civ. Proc. Code § 405.23.
Plaintiff again did not mail Defendants a copy of the lis
pendens via registered or certified mail prior to recording
it on September 20, 2016. Instead, Plaintiff sent the lis
pendens by regular mail to a random U.S. Bank
branch. (See Kress Decl., Exh. A.)
Plaintiff also failed to serve a recorded copy on Defendants
or file a copy with the Court immediately upon recordation.
(See Kress Decl. ¶ 6.) Thus, the lis pendens is
void and must be expunged. (See Ord. at 4-5.)
opposition, Plaintiff repeats the same argument that she is
not required to comply with California law because "the
case in hand is not governed by the California Code of Civil
Procedure, but rather by the Federal Rules of Civil
Procedure." (Plf.'s Opp'n at 4.) For the same
reasons stated in the Court's December 8, 2016 order, the
Court rejects this argument as lacking legal merit.
(See Ord. at 5 (citing Yu v. America's
Wholesale Lender, Case No. 16-cv-1545-JSC, 2016 WL
4698911, at *5 ("California law governs matters relating
to notices of pending action, or lis pendens");
Sharp v. Nationstare Mortg. LLC, Case No.
14-CV-831-LHK, 2016 WL 6696134, at *4 (N.D. Cal. Nov. 15,
2016) ("Federal courts look to the law of the state
where the property resides in matters concerning lis
pendens") (internal quotation omitted); Pistone v.
Countrywide Home Loans, Inc., No. C 14-4581 WHA, 2015 WL
3424912, at *1 (N.D. Cal. May 27, 2015) (same); Kum Tat
Ltd. v. Linden Ox Pasture, LLC, Case No. 14-cv-2857-WHO,
2014 WL 4652355, at *3 (N.D. Cal. Sept. 18, 2014) (same);
Cerezo v. Wells Fargo Bank, Case No.: 13-1540 PSG,
2013 WL 4113515, at *1 (N.D. Cal. Aug. 9, 2013) (same)).)
for the same reasons stated in the Court's December 8,
2016 order, the instant case does not involve a real property
claim, nor has Plaintiff shown by a preponderance of the
evidence the probable validity of a real property claim.
(See Ord. at 6.) ...