Maristela et al v. Paramont Realty and Financial et al

Filing 17

ORDER granting 15 Motion to Expunge; granting 15 Motion for Attorney Fees and awards $760.00 in attorney's fees. Signed by Judge Thomas J. Whelan on 3/30/11. (All non-registered users served via U.S. Mail Service)(rlu)

-BLM Maristela et al v. Paramont Realty and Financial et al

Doc. 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 PARAMOUNT REALTY AND FINANCIAL, et al., Defendants. v. FELIX R. MARISTELA, et al., Plaintiffs, CASE NO. 09-CV-2856 W (BLM) ORDER: (1) GRANTING DEFENDANTS' MOTION TO EXPUNGE LIS PENDENS [DOC. 15], AND (2) GRANTING DEFENDANTS' MOTION FOR ATTORNEY'S FEES [DOC. 15] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On January 31, 2011, the Court dismissed this case with prejudice. On February

22 1, 2011, Defendants PNC Bank, National Association, doing business as PNC 23 Mortgage, and as successor by merger to National City Bank, formerly doing business 24 as National City Mortgage, and PNC Financial Service Group filed a motion to expunge 25 the lis pendens and a motion for attorney's fees. Plaintiffs Felix R. Maristela and Salome 26 E. Maristela have not opposed. 27 Civil Local Rule 7.1(f.3.c) provides that "[i]f an opposing party fails to file papers 28 in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent
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1 to the granting of that motion or other ruling by the court." The Ninth Circuit has held 2 that a district court may properly grant a motion to dismiss for failure to respond. See 3 generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming 4 dismissal for failure to file timely opposition papers where plaintiff had notice of the 5 motion and ample time to respond). 6 In this case, based on the March 28, 2011 hearing date, Plaintiffs' opposition was 7 due on or before March 14, 2011. Plaintiffs, however, did not file an opposition by this 8 date and have not requested additional time to do so. Moreover, there is no evidence 9 before the Court that Defendants' moving papers failed to reach the mailing address 10 designated in Defendants' Proof of Service or that Plaintiffs were not aware of the 11 pending motion. Relying on Civil Local Rule 7.1(f.3.c), the Court deems Plaintiffs' 12 failure to oppose Defendants' motions as consent to granting the motions. 13 14 15 16 17 18 19 20 21 22 DATE: March 30, 2011 23 24 25 26 27 28
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In light of the foregoing, the Court: 1. EXPUNGES the lis pendens recorded in connection with this action as San Diego County Recorder's Office Document No. 2009-0702424 (Doc. 15), and 2. GRANTS Defendants' motion for attorney's fees and AWARDS $760.00 in attorney's fees (Doc. 15). IT IS SO ORDERED.

HON. THOMAS J. WHELAN United States District Judge Southern District of California