John Edward Robinson et al v. Wells Fargo Home Mortgage et al

Filing 77

ORDER [AS MODIFIED BY THE COURT] by Judge Yvonne Gonzalez Rogers granting in part and denying in part 72 Motion for Sanctions. The hearing set for 1/8/19 is VACATED. (fs, COURT STAFF) (Filed on 12/21/2018)

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PETER J. SALMON (SBN 174386)
DONNA Y. OH (SBN 278911)
ALDRIDGE PITE, LLP
4375 JUTLAND DRIVE, SUITE 200
P.O. BOX 17935
SAN DIEGO, CA 92177-0935
TELEPHONE:
FACSIMILE: [phone]
E-Mail: [e-mail]

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Attorneys for Defendant WELLS FARGO BANK N.A., successor by merger with
Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a World
Savings Bank, FSB (“Wells Fargo”)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - OAKLAND

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John Edward Robinson, Janice M
Walsh,

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Plaintiffs,
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vs.
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Wells Fargo Bank N.A.
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Defendant,

Case No. 4 16-cv-01619-YGR
[PROPOSED] ORDER ON MOTION
TO EXPUNGE LIS PENDENS AND
REQUEST FOR MONETARY
SANCTIONS AGAINST
PLAINTIFFS JOHN EDWARD
ROBINSON AND JANICE M.
WALSH IN THE AMOUNT OF
$1,500.00

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*as modified by the Court*
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Date: January 8, 2019
Time: 2:00 p.m.
Courtroom: 1, Fourth Floor

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Now before the Court is the MOTION TO EXPUNGE LIS PENDENS AND

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REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFFS JOHN

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EDWARD ROBINSON AND JANICE M. WALSH IN THE AMOUNT OF

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$1,500.00 filed by Defendant WELLS FARGO BANK N.A., successor by merger

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with Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a

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World Savings Bank, FSB (“Wells Fargo”). (Dkt. No. 72.)

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STATEMENT OF THE RATIONALE OF THE DECISION

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The term of the Notice of Lis Pendens has expired by operation of law: The

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constructive notice from a recorded lis pendens continues until a judgment is
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[PROPOSED] ORDER

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rendered and the period for appeal expires. (4 Miller & Starr California Real Estate

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(4th ed. 2016) Cal. Real Est. §10:151.) “The lis pendens…is purely incidental to the

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action wherein it is filed. It refers specifically to such action, and has no existence

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apart from it. When, therefore, the action has been terminated by the entry of a

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judgment and by expiration of the statutory time within which an appeal from the

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judgment may be taken, the notice of lis pendens has fully served its purpose.”

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(Garcia v. Pinhero (1937) 22 Cal.App.2d 194, 197 [finality of action after entry of

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judgment of dismissal after sustaining of demurrer].)

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Cal. Civ. Proc. Code § 405.32 states:
In proceedings under this chapter, the court shall order that the notice
be expunged if the court finds that the claimant has not established by
a preponderance of the evidence the probable validity of the real
property claim. The court shall not order an undertaking to be given as
a condition of expunging the notice if the court finds the claimant has
not established the probable validity of the real property claim.

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The underlying action has been dismissed with prejudice by Court order after

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granting of the Motion to Dismiss Plaintiff’s First Amended Complaint, and

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subsequently after Plaintiffs’ failure to file timely their Second Amended Complaint

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as ordered by the Court. This means that Plaintiffs have failed, despite multiple

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chances, to establish a valid claim against Defendant.

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underlying action pending for Plaintiffs to establish a valid real property claim

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against Wells Fargo. The dismissal of the underlying case, with prejudice, marks

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the finality of this action and the termination of the Lis Pendens by operation of law.

Presently, there is no

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ORDER

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After reviewing the papers submitted, the Court hereby GRANTS IN PART AND

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DENIES IN PART Defendant Wells Fargo’s motion.

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The Notice of Pendency of Action, which recorded on May 23, 2016, in the

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Official Records of Contra Costa County, California, as Instrument No. 2016-

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0097448-00, is hereby EXPUNGED as against Plaintiffs John Edward Robinson and

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Janice M. Walsh, in relation to the above-entitled action filed against Defendant
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[PROPOSED] ORDER

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WELLS FARGO BANK N.A.
The Court DENIES Defendant Wells Fargo’s request for monetary sanctions
against Plaintiffs John Edward Robinson and Janice M. Walsh.

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This Order terminates Docket Number 72.1

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IT IS SO ORDERED.

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December 21, 2018
Dated: ______________

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___________________________________
YVONEE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT
JUDGE

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In light of this Order, the hearing set for January 8, 2019 is VACATED.
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[PROPOSED] ORDER