Palmer et al v. Countrywide et al

Filing 28

ORDER GRANTING DEFENDANTS' MOTION TO EXPUNGE LIS PENDENS AND REQUEST FOR SANCTIONS; VACATING NOVEMBER 30, 2012 HEARING. Signed by Judge Maxine M. Chesney on November 20, 2012. (mmclc1, COURT STAFF) (Filed on 11/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RANDY PALMER and YOLANDA PALMER,

No. C-12-1332 MMC

For the Northern District of California

United States District Court

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Plaintiffs,

ORDER GRANTING DEFENDANTS’
MOTION TO EXPUNGE LIS PENDENS
AND REQUEST FOR SANCTIONS;
VACATING NOVEMBER 30, 2012
HEARING

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v.
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COUNTRYWIDE, BANK OF AMERICA,
N.A.,

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Defendants.

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Before the Court is defendants “Motion to Expunge Lis Pendens,” filed October 15,

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2012. Plaintiffs have not filed opposition. Having read and considered the papers filed in

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support of the motion, the Court finds the matter suitable for decision on the moving

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papers, VACATES the hearing scheduled for November 30, 2012, and rules as follows.

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BACKGROUND
On February 17, 2012, plaintiffs filed the instant action, alleging in their complaint

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that they owned certain real property in Fresno, California, and that defendants had

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instituted non-judicial foreclosure proceedings without having a legal right to do so. (See

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Compl. ¶¶ 5, 21-22, 49.) On February 21, 2012, plaintiffs recorded with the Fresno County

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Recorder a “Lis Pendens,” stating therein that the Fresno property was the subject of

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litigation. (See Defs.’ Req. for Judicial Notice Ex. D.) On July 17, 2012, the Court

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dismissed plaintiffs’ complaint, with leave to amend, for failure to state a claim upon which

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relief could be granted. After plaintiffs failed to file an amended complaint within the time

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provided in the July 17, 2012 order, the Court, on August 7, 2012, dismissed the action with

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prejudice. On August 8, 2012, the Clerk of the Court entered judgment on the Court’s

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order. Plaintiffs did not file a notice of appeal from the judgment. Thereafter, counsel for

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defendants prepared and sent to plaintiffs’ counsel, on three separate occasions, a

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proposed “Notice of Withdrawal of Notice of Pendency of Action (Lis Pendens),” and

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requested plaintiffs’ counsel sign said document and return it to defendants’ counsel, who

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offered to record it. (See Li Decl. Ex. 2.) Counsel for plaintiffs did not sign the proposed

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notice, and plaintiffs have not otherwise withdrawn the notice they recorded with the Fresno

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County Recorder.
DISCUSSION

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By the instant motion, defendants seek an order expunging the Lis Pendens

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plaintiffs recorded with the Fresno County Recorder and, additionally, seek to recover the

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attorney’s fees they incurred in filing the instant motion.

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A. Expungement

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Under California law,1 “[a] party to an action who asserts a real property claim may

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record a notice of pendency of action in which that real property claim is alleged,” see Cal.

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Code Civ. Proc. § 405.20, which notice is known as a “lis pendens,” see Mix v. Superior

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Court, 124 Cal. App. 4th 987, 992-93 (2005). “[T]he court shall order that the notice be

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expunged if the court finds that the claimant has not established by a preponderance of the

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evidence the probable validity of the real property claim.” Cal. Code Civ. Proc. § 405.32.

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Where a trial court has resolved on the merits a real property claim against the party who

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recorded the notice, “the lis pendens must be expunged unless the trial court is willing to

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find that the probabilities are that its own decision will be reversed on appeal.” See Mix,

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124 Cal. App. 4th at 996 (emphasis in original).

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Here, as discussed above, plaintiffs’ claims have been resolved against them on the
merits, and plaintiffs have not filed a notice of appeal from the judgment. Because the

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The Court had diversity jurisdiction over plaintiffs’ claims.
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deadline to file a notice of appeal has passed, see Fed. R. App. P. 4(a)(1) (providing

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deadline to file notice of appeal is “30 days after entry of the judgment”), the Court finds

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there is no reasonable probability this Court’s decision will be reversed on appeal.

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Accordingly, defendants are entitled to an order expunging the notice previously

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recorded by plaintiffs.

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B. Attorney’s Fees

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Under California law, “[t]he court shall direct that the party prevailing on any motion

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under [§ 405.32] be awarded the reasonable attorney’s fees and costs of making or

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opposing the motion unless the court finds that the other party acted with substantial

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justification or that other circumstances make the imposition of attorney’s fees and costs

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unjust.” See Cal. Code Civ. Proc. § 405.38.

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The instant motion was necessitated by plaintiffs’ failure to voluntarily withdraw the

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notice, despite their having been provided several opportunities to do so. Given that

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plaintiffs did not file a notice of appeal from the judgment entered against them, there can

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exist no substantial justification for plaintiffs’ failure. Further, nothing in the record

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indicates there exists any circumstance suggesting the imposition of attorney’s fees would

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be unjust.

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Accordingly, the Court finds defendants are entitled to recover the fees reasonably

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incurred in filing the instant motion, which fees, as defendants have demonstrated (see

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Richardson Decl. ¶ 3), are $840.00.
CONCLUSION

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For the reasons stated above, defendants’ motion is hereby GRANTED, as follows:

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1. The Lis Pendens recorded with the Fresno County Recorder on February 21,

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2012 is hereby expunged.

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2. Defendants are awarded attorney’s fees in the amount of $840.00.

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IT IS SO ORDERED.

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Dated: November 20, 2012

MAXINE M. CHESNEY
United States District Judge

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