Olivas v. Reconctrust Company, N.A. et al

Filing 15

ORDER denying 12 ex parte application for notice of lis pendens. Signed by Judge Larry Alan Burns on 8/5/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KRISTI C. OLIVAS,

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CASE NO. 11CV1331-LAB (NLS)
Plaintiff,

ORDER DENYING EX PARTE
APPLICATION FOR NOTICE OF
LIS PENDENS

vs.
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RECONTRUST COMPANY, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,

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Defendants.
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On July 28, the Court accepted by discrepancy order a request from Plaintiff asking

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that the Court approve a notice of lis pendens (i.e., notice of pendency of action) so that

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Plaintiff could record it. Because Plaintiff is proceeding pro se, approval by the Court is

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required before the notice can be recorded. Cal. Civ. Proc. Code § 405.21. Defendants

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then filed a response in opposition pointing out that this action does not present a “real

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property claim” as defined in Cal. Civ. Proc. Code § 405.4, because it seeks monetary

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damages only, and does not affect title or right to possession of real property.

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Assuming Plaintiff prevails in this action, she will be entitled to monetary damages,

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but the title or possessory rights of real property would be unaffected. Section 405.4 also

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permits lis pendens notices where the causes of action, if meritorious, would affect use of

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11CV1331

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an easement, but that is not implicated here either. Defendants are therefore correct that

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no “real property claim,” as defined in § 405.4, is presented here.

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Because the complaint does not raise a real property claim, meritorious or otherwise,

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no notice of lis pendens is appropriate. See Cal. Civ. Proc. Code §§ 405.2 (defining notice

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of lis pendens, as “a notice of the pendency of an action in which a real property claim is

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alleged.”); 405.20 (“A party to an action who asserts a real property claim may record a

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notice of pendency of action in which that real property claim is alleged.”) The ex parte

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application (Docket no. 12) is therefore DENIED.

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IT IS SO ORDERED.
DATED: August 5, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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11CV1331