Nair et al v. Toth et al

Filing 28

ORDER denying Defendant Dean Kalivas's 24 Ex Parte MOTION to Cancel Lis Pendens without prejudice. Signed by Judge Tana Lin. (cc: Plaintiffs Jayakumar Sundaran Nair, Omana Amma Thankamma, Sukanya Susheelkumar and Defendant Dean Kalivas via USPS)(MJV).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JAYAKUMAR SUNDARAN NAIR et al.,
v.

Plaintiffs,

CASE NO. 2:23-cv-00454-TL
ORDER ON EX PARTE MOTION TO
CANCEL LIS PENDENS

ALEX TOTH et al.,
Defendants.

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This matter is before the Court on Defendant Dean Kalivas’s Ex Parte Motion to Cancel

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Lis Pendens. Dkt. No. 24. Defendant argues that his “house-cleaning motion” is appropriate

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because the Court dismissed this case without prejudice on August 30, 2023. Defendant notes

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that despite the case being dismissed, on September 28, 2023, Plaintiff Jayakrishnan Nair

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referenced this case as cause for encumbering the title to two properties that are claimed to be at

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issue in this matter pursuant to RCW 4.28.320. Dkt. No. 24 at 1–2. That same day, Plaintiffs

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filed a motion to reconsider the Court’s order of dismissal, which was eventually denied. See

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Dkt. Nos. 17, 19. Plaintiffs filed a notice of appeal to the Ninth Circuit on November 20, 2023.

ORDER ON EX PARTE MOTION TO CANCEL LIS PENDENS - 1

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See Dkt. No. 20. Defendant Kalivas filed an ex parte motion to cancel lis pendens on

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December 4, 2023. Dkt. No. 24. The appeal is still pending at the Ninth Circuit.

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A “lis pendens” is an “instrument having the effect of clouding the title to real property.”

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RCW 4.28.328(1)(a). A court has discretion to cancel a lis pendens when three conditions are

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met: (1) the action must be settled, discontinued, or abated, (2) an aggrieved person must move

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to cancel the lis pendens, and (3) the aggrieved person must show good cause and provide proper

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notice. RCW 4.28.320; see also Suess v. Nw. Timber & Dev., Inc., 24 Wn. App. 2d 1010, 2022

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WL 14297047, at *15 (2022) (unpublished) (quoting Guest v. Lange, 195 Wn. App. 330, 336,

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381 P.3d 130 (2016)). “[A] notice of appeal, by transporting a case from a trial court to a court of

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appeals, renders the action in that case not ‘settled, discontinued, or abated.’” Guest, 195 Wn.

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App. at 340. Further, “the weight of authority from other jurisdictions suggests that an appeal

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preserves the lis pendens.” Id. at 339.

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The Court finds that this case is not fully “settled, discontinued, or abated” due to the

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pending Ninth Circuit appeal. See, e.g., Suess, 2022 WL 14297047 at *15. Therefore, the Court

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DENIES

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Defendant’s motion without prejudice.
Dated this 26th day of March 2024.

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A

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Tana Lin
United States District Judge

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ORDER ON EX PARTE MOTION TO CANCEL LIS PENDENS - 2