Motion to expunge a Lis Pendens in California

A motion to expunge a Lis Pendens in California is the topic of this blog post

The technical name for a Lis Pendens is a notice of pendency of action. The term Lis Pendens is more commonly used and is Latin for pending lawsuit.

The statutes governing a Lis Pendens in California are found in Code of Civil Procedure sections 405.1 through 405.39.

Code of Civil Procedure § 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure § 405.4 states that, “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”

Law authorizing a motion to expunge a Lis Pendens in California.

A motion to expunge a Lis Pendens in California is authorized by Code of Civil Procedure section 405.30 which states that,

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”

Burden of proof on motion to expunge a Lis Pendens in California.

Once the motion to expunge has been filed the burden is on the plaintiff to show that at least one of the causes of action of their complaint states a real property claim.  The Court must order the notice expunged if the complaint does not state a real property claim.

Code of Civil Procedure § 405.31 states that,

“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”

Code of Civil Procedure § 405.32 states that,

“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.”

Grounds for filing a motion to expunge a Lis Pendens in California.

The most common grounds for expunging a Lis Pendens in California are that the complaint does not state a real property claim as required by California law.

Another ground for expunging a Lis Pendens in California is on the grounds that it is void and invalid as the Plaintiff did not comply with the requirements of Code of Civil Procedure §  405.22 which states that, “ Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”

Code of Civil Procedure § 405.23 states that, “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

The recording of a Lis Pendens against a real property clouds the title and may prevent any transfer of the real property.  Therefore, the Lis Pendens procedure is abused very frequently.

The California Supreme Court has stated that, Courts have long recognized that “[b]ecause the recording of a lis pendens place[s] a cloud upon the title of real property until the pending action [is] ultimately resolved . . . , the lis pendens procedure [is] susceptible to serious abuse, providing unscrupulous plaintiffs with a powerful lever to force the settlement of groundless or malicious suits.”  See Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523, fn. 2, 524 (emphasis in original).

Several California Courts of Appeal have stated in published decisions that the history of the legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.

The California Courts of Appeal have stated in several published decisions that causes of action with equitable liens do not state a real property claim if those causes of action act only as an alternative or collateral means to collect money damages as the real purpose of the statutes is to provide notice of pending litigation and not to provide plaintiffs with more leverage for use in negotiating a settlement.

Causes of action for money only do not state a real property claim in California.

Attorney’s fees and costs available on a motion to expunge a Lis Pendens in California.

The prevailing party on the motion to expunge is entitled to reasonable attorney’s fees and costs pursuant to Code of Civil Procedure § 405.38 which states that,

“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to expunge a Lis Pendens is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Rule 60(b)(2) motion to vacate a judgment in United States District Court

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is filed using the  grounds of newly discovered evidence. Rule 60(b)(2) refers to the Federal Rules of Civil Procedure.

Rule 60(b)(2) states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

A district court may vacate a prior judgment where the court is presented with newly discovered evidence, an intervening change of controlling law, manifest injustice, or where the prior order was clearly erroneous. Fed. R. Civ. P. 60(b)(1)-(6); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) see also Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000).

A Rule 60(B)(2) motion to vacate a judgment is appropriate if you can meet the burden required of the moving party as detailed in this blog post.

Requirements for a Rule 60(B)(2) motion to vacate a judgment in United States District Court.

The party filing a Rule 60(b)(2) motion to vacate a judgment in United States District Court must meet their burden of showing that,

The newly discovered evidence was discovered after the trial;

They exercised diligence to discover the evidence;

The evidence is not just cumulative or impeaching evidence;

The evidence is material;

The evidence would most likely produce a different result if the judgment were set aside, and

The evidence could not have been discovered in time to move for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure which states that, “A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

And several Circuit Courts of Appeal have also stated in published decisions that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence.

If you become aware of new evidence that was material to your claim or defense and could not have been discovered earlier you need to contact an experienced civil litigation attorney as soon as possible to increase the probability that your motion will be granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(2) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Request for an extension of time to respond to a complaint in California

A request for an extension of time to respond to a complaint in California is the topic of this blog post.

A request for an extension of time to respond in California is typically made by filing an ex parte application as the circumstances that necessitate the request usually arise when there is not sufficient time for the request to be heard by filing a noticed motion.

Law authorizing a request for an extension of time to respond to a complaint in California.

A request for an extension of time to respond in California is authorized by Code of Civil Procedure section 1054(a) which allows a judge to grant an extension of tine not exceeding 30 days to respond to a complaint upon a showing of good cause.  An extension of time may also be granted to respond to a cross-complaint as well.

Code of Civil Procedure § 1054(a) states that, “When an act to be done, as provided in this code, relates to the pleadings in the action, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move for a new trial, the time allowed therefor, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the court in which the action is pending, or by the judge who presided at the trial of the action; but the extension so allowed shall not exceed 30 days, without the consent of the adverse party.”

Before filing a request for an extension of time to respond in California most judges want the defendant to first contact the plaintiff or opposing party or their attorney and request that they stipulate to an extension of time to respond to the complaint. If the request is denied that fact should be mentioned in the supporting declaration to show to the judge that you attempted to obtain a stipulation but were unsuccessful.

Common grounds for a request for an extension of time to respond to a complaint in California.

The judge has discretion as to whether or not to grant an extension of time to respond in California.  Most judges would consider that a defendant has established good cause if they can show that they need an extension of time to,

Obtain the funds to retain an attorney;

They have contacted an attorney that needs more time to review the case;

A family emergency requires the defendant to travel out of town, or

A medical emergency involving the defendant such as hospitalization prevents them from filing a timely response to the complaint.

Any declarations supporting a request for an extension of time to respond should include sufficient facts and evidence detailing the circumstances that have necessitated the request for an extension of time to respond.

The request for an extension of time should also state whether or not any previous extensions of time to respond by court order or stipulation have been granted.

An experienced litigation attorney can evaluate your situation and determine whether filing a request for an extension of time to respond is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Request for leave of court to file a compulsory cross-complaint in California

A request for leave of court to file a compulsory cross-complaint in California is the topic of this blog post.

A request for leave of court to file a compulsory cross-complaint in the State of California is a very useful tool for any party that has discovered facts that support what are known as affirmative claims for relief which evolve from “a series of acts or occurrences logically interrelated” as these claims are for related causes of action that are subject to forfeiture if they are not pleaded in the action.  This typically happens during the discovery phase of litigation.

Statutory authorization for leave of court to file a compulsory cross-complaint in California.

A request for leave of court to file a compulsory cross-complaint in the State of California is authorized by the provisions of Code of Civil Procedure section 426.50.

Code of Civil Procedure § 426.50 states that, “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action.  The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.  This subdivision shall be liberally construed to avoid forfeiture of causes of action”.

It should be noted that Code of Civil Procedure section 426.50 also allows any party to request leave of court to amend their cross-complaint to add additional causes of action at any time during the course of the action.

A California Court of Appeal has stated in a published case that a motion for leave of court to file a cross-complaint at any time during the course of an action must be granted unless the opposing party can show bad faith on the part of the moving party.

In the case of Silver Organizations Ltd. v. Frank (1990) 217 Cal.App 3d 94, 98-99 a California Court of Appeal stated that, “The legislative mandate is clear.  A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.  A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.  Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith”

The Court also ruled in Silver Organizations Ltd. v. Frank, at 100, that “Our review of the entire record fails to reveal, directly or inferentially, any substantial evidence of bad faith by the appellants.  Looking at the entire period between the filing of the complaint and the denial of the section 426.50 motion, a time frame of less than six months, we find nothing in appellants’ words or conduct remotely suggesting dishonest purpose, moral obliquity, sinister motive, furtive design or ill will”.

In Silver Organizations Ltd. v. Frank the Court of Appeal ruled that a time period of less than six months between the filing of a complaint and a motion to file a compulsory cross-complaint did not constitute bad faith

While other cases have ruled that a lengthy delay of over six months may constitute bad faith, the decision in Silver Organizations Ltd. v. Frank has not been disapproved or otherwise disagreed with in any other published case in the State of California as of the date of this blog post.

Any party that wants to request leave of court to file a compulsory cross-complaint should file their motion within six months or less to avoid the possibility of their motion being denied.

An experienced litigation attorney can evaluate your situation and determine whether the unique circumstances of your case would support a request for leave to file a compulsory cross-complaint.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

A motion for nonsuit in California

A motion for nonsuit in California is the topic of this blog post.

A motion for nonsuit in California can be very useful if it is filed in the appropriate situations.  This is due to the fact that a motion for nonsuit allows a defendant to challenge the sufficiency of the evidence offered by a plaintiff at an early stage of the trial while still preserving the right to present their defense if the motion for nonsuit is denied.  It should be noted that a defendant may not move for nonsuit until after plaintiff has completed their opening statement, or has presented their evidence in a jury trial.

Several California Court of Appeal published decisions have held that a motion for nonsuit functions as a demurrer to the evidence offered by plaintiff.

Law authorizing a motion for nonsuit in California.

Code of Civil Procedure section 581(c) is the statutory authority for filing a motion for nonsuit in California.

Code of Civil Procedure § 581c states that,

“(a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

(b) If it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.

(d) In actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.”

Limitations on a motion for nonsuit in California.

It should be noted that a motion for nonsuit has some limitations as the judge hearing the motion for nonsuit in California has very limited discretion as the court must rule solely on the basis of the evidence offered by plaintiff.  In ruling on a motion for nonsuit in California after the opening statement, the court can only consider only the matters stated by plaintiff in the opening statement and any reasonable inferences that may be drawn.

The California Supreme Court stated in a published decision from over 100 years ago that granting nonsuit after an opening statement is disfavored and should be avoided unless the evidence clearly shows that no case can be made out.

The discretion is very similar in ruling on a motion for nonsuit after plaintiff has presented their case, in that case only the evidence submitted by plaintiff and any reasonable inferences that may be drawn can be considered.

Many motions for nonsuit in California are made orally and without any prior notice being provided to plaintiff.  Although supporting papers are not generally required, a motion for nonsuit in California is more powerful if it is based on points and authorities.  A motion for motion after plaintiff has presented their case may be based on exhibits received in evidence and transcripts of testimony.

The party filing a motion for nonsuit in California must state the precise grounds on which the motion is made, and should indicate the defects in the plaintiff’s case clearly and with particularity.

As should be obvious by now, the requirements for a motion for nonsuit are quite restrictive.

Advantages of a motion for nonsuit in California.

However a motion for nonsuit does have one huge advantage in that it operates as an adjudication upon the merits “unless the court in its order for judgment otherwise specifies.” See Code of Civil Procedure § 581c.

A defendant who prevails on a motion for nonsuit is entitled to recover their costs. See Code of Civil Procedure § 1033.

There is one key point to remember which is that anyone considering a motion for nonsuit after plaintiff’s opening statement should consider the fact that, if the defects identified are easily correctable, plaintiff will not only be alerted, they will simply oppose the motion and stress that motions for nonsuit are disfavored which they clearly are.

An experienced litigation attorney can evaluate your situation and determine if filing a motion for nonsuit is appropriate for your case.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.