Kwong v. Santa Clara County Sheriff's Office et al

Filing 17

ORDER DENYING 13 REQUEST FOR NOTICE OF LIS PENDENS. Signed by Judge Beth Labson Freeman on 5/1/2017. (blflc2S, COURT STAFF) (Filed on 5/1/2017)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 SUZANNE DUYEN KWONG, Plaintiff, 6 7 8 9 Case No. 17-cv-02127-BLF ORDER DENYING REQUEST FOR NOTICE OF LIS PENDENS v. SANTA CLARA COUNTY SHERIFF'S OFFICE, et al., [Re: ECF 13] Defendants. 10 United States District Court Northern District of California 11 Plaintiff Suzanne D. Kwong has filed a request under California Code of Civil Procedure 12 section 405.21 for this Court to approve a notice of pending action to be recorded against the real 13 property involved in this matter. See ECF 13. Having reviewed the application and Plaintiff’s 14 First Amended Complaint (“FAC”), the Court DENIES Plaintiff’s request. 15 “A party to an action who asserts a real property claim may record a notice of pendency of 16 action,” otherwise known as a lis pendens, “in which that real property claim is alleged.” Cal. Civ. 17 Proc. Code § 405.20. “The notice shall contain the names of all parties to the action and a 18 description of the property affected by the action.” Id. In addition, “[a] notice of pendency of 19 action shall not be recorded unless (a) it has been signed by the attorney of record, (b) it is signed 20 by a party acting in propria persona and approved by a judge as provided in this section, or (c) the 21 action is subject to Section 405.6.” Cal. Civ. Proc. Code § 405.21. For the purpose of a lis 22 pendens, a “real property claim” is a cause of action “in a pleading which would, if meritorious, 23 affect (a) title to, or the right to possession of, specific real property . . . .” Id. § 405.4. Applying a 24 standard similar to a motion to expunge, the court will not permit an unrepresented claimant to 25 record a lis pendens if the pleading filed by the claimant does not properly plead a “real property 26 claim.” See Kirkeby v. Superior Court, 33 Cal. 4th 642, 647 (2004). The analysis is similar to that 27 of a demurrer in state court, or a motion to dismiss for failure to state a claim in federal court. Id. 28 at 647–48. 1 Kwong asserts the following claims: (1) misrepresentation; (2) unfair practices; (3) and 2 “no void instrument conveys,” which the Court construes as a claim for fraud. See generally FAC. 3 Although Kwong alludes to additional claims in the caption of the FAC and Prayer for Relief— 4 such as unlawful eviction—she does not adequately plead any of them. Accordingly, Plaintiff has 5 not properly plead a “real property claim” pursuant to section 405.4, and the Court thus DENIES 6 her request for approval of the Notice. 7 IT IS SO ORDERED. 8 9 10 United States District Court Northern District of California 11 Dated: May 1, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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