Van Galder v. Clark et al

Filing 31

ORDER granting 28 Defendants' Ex Parte Application to Shorten Time to File a Motion to Expunge Plaintiff's Notice of Pendency of Action. the Court GRANTS Defendants motion to shorten the time to hear their motion to expunge the notice of pendency of action filed by Plaintiff.The briefing schedule for the motion is as follows:- Defendants are to file their motion to expunge by 10/23/2017- Opposition papers are due 10/27/2017- Reply papers are due 10/30/2017- The motion hearing will be set for 11/6/2017The motion and opposition are not to exceed fifteen pages, and the reply brief is not toexceed 5 pages in length. Signed by Judge Anthony J. Battaglia on 10/20/2017. (acc)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 v. ROGER CLARK, an individual, MELISSA SCOTT CLARK, an individual, SOUR WINE FARMS LLC, a Delaware limited liability company, et al., Defendants. 19 21 22 23 24 ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO SHORTEN TIME TO FILE A MOTION TO EXPUNGE PLAINTIFF’S NOTICE OF PENDENCY OF ACTION Plaintiff, 18 20 Case No.: 17-cv-1623-AJB-JLB JENNIFER VAN GALDER, an individual, On October 17, 2017, Defendants Melissa Clark and Sour Wine Farms, LLC (collectively referred to as “Defendants”) filed an ex parte application requesting that the Court shorten the time for a noticed hearing on their motion to expunge the lis pendens filed by Plaintiff with the San Diego County Recorder’s Office. (Doc. No. 28.) Plaintiff Jennifer Van Galder (“Plaintiff”) did not file an opposition to the application. BACKGROUND1 25 In March of 2015, Defendant Melissa Clark allegedly purchased a property directly 26 27                                                                   28 1 The Court employed the allegations as provided by Defendants in their ex parte motion. 1 17-cv-1623-AJB-JLB 1 from the owners, Jeffrey and Karen Dunham, located at 14130 Bahama Cove, Del Mar, 2 California (“the Property”). (Doc. No. 28 at 2.) In July of 2015, Defendant Roger Clark 3 filed a Chapter 7 bankruptcy petition. (Id.) Plaintiff then subsequently filed an adversarial 4 action to Mr. Clark’s bankruptcy case. (Id.) After Mr. Clark agreed to the non- 5 dischargeability of his debts, Plaintiff filed the present action alleging that all of the 6 Defendants committed fraud in Mr. Clark’s bankruptcy action. (Id.) 7 On August 14, 2017, Plaintiff filed a Notice of Pendency of Action with the San 8 Diego County Recorder’s Office. (Id.) The Notice included a copy of the original complaint 9 and a description of the Property. (Id.) Defendants allege that they were not served with 10 the Notice. (Id.) The Property was then put on the market and sold. (Id.) It was during the 11 title search that Ms. Clark claims that she first saw the Notice. (Id.) Defendants state that 12 the Property is currently in escrow with a closing date in November of 2017. (Id at 3.) 13 DISCUSSION 14 Defendants state that they are cognizant that a request to expunge a notice of 15 pendency of action is a noticed motion that would normally require an ordinary briefing 16 schedule by the Court. (Id.) However, Defendants argue that time is of the essence as there 17 is a cloud on the title to the Property and that the urgency is due to Plaintiff’s failure to 18 provide Defendants notice of the pendency action according to the rules as set forth in the 19 California Code of Civil Procedure. (Id. at 5.) 20 California Code of Civil Procedure governs notice of pendency actions. Cal. Civ. 21 Proc. §§ 405 et seq. The statute states among other things that prior to recordation that a 22 copy of the notice is to be served to all parties to whom the real property claim is adverse 23 to and all owners of the real property. Id. § 405.22. In addition, after the notice has been 24 recorded, any party can apply to the court in which the action is pending to expunge the 25 notice. Id. § 405.30. 26 Based on the allegations presented in the ex parte motion, the Court finds that the 27 motion to shorten time to hear Defendants’ motion to expunge the notice is warranted. 28 First, Defendants have established some form of irreparable prejudice if the motion is heard 2 17-cv-1623-AJB-JLB 1 on the regular motion calendar as the Notice may affect the sale of the Property. See 2 Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488, 493 (C.D. Cal. 1995). 3 Moreover, Plaintiff failed to file an opposition to the application, and based on Judge 4 Battaglia’s Civil Case Procedures “[e]x parte motions that are not opposed, will be 5 considered unopposed and may be granted on that ground.” Civ. Case. Proc. III.2. Based 6 on the foregoing, the Court GRANTS Defendants’ ex parte application. 7 CONCLUSION 8 As explained more fully above, the Court GRANTS Defendants’ motion to shorten 9 the time to hear their motion to expunge the notice of pendency of action filed by Plaintiff. 10 The briefing schedule for the motion is as follows: 11 - Defendants are to file their motion to expunge by October 23, 2017 12 - Opposition papers are due October 27, 2017 13 - Reply papers are due October 30, 2017 14 - The motion hearing will be set for November 6, 2017 15 The motion and opposition are not to exceed fifteen pages, and the reply brief is not to 16 exceed 5 pages in length. 17 18 IT IS SO ORDERED. 19 Dated: October 20, 2017 20 21 22 23 24 25 26 27 28 3 17-cv-1623-AJB-JLB

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?