Moving Party: Defendant JP Morgan Chase Bank, N.A. (“JP Morgan”)
Resp. Party: None

JP Morgan’s unopposed motion to expunge lis pendens is GRANTED.

BACKGROUND:

Plaintiffs commenced this action on 9/1/10. The most recent pleading filed by plaintiffs was a sixth amended complaint (“6AC”) filed 11/13/12, alleging causes of action for: (1) breach of third party beneficiary contract; (2) professional negligence; (3) intentional infliction of emotional distress ; (4) breach of the covenant of good faith and fair dealing; (5) breach of contract; (6) violation of Business and Professions Code section 17200; and (7) forcible entry. The only cause of action alleged against JP Morgan is the second cause of action. The second, third, and sixth causes of action are alleged against defendants Coldwell Banker, Harvey, and Essex. The seventh cause of action is alleged against defendant Cyprexx.

Plaintiffs allege they are owners of the subject real property. (6AC ¶ 1.) On 7/23/10, plaintiffs called defendant JP Morgan’s trustee, defendant Quality Loans, and were told that their house had been sold and that JP Morgan had bought the home. (Id., ¶ 18.) Plaintiffs were told that Quality would help plaintiffs regain ownership of the property. (Ibid.) Plaintiffs believed that their house could not have been sold because they were under bankruptcy protection by having filed for bankruptcy on July 23, 2010, and because plaintiff Dison had been negotiating a loan modification. (Ibid.)

On 8/10/10, plaintiffs left their home, but upon their return they were restricted access to their home per the instructions of JP Morgan, Coldwell Banker, Harvey, Essex, and Bel Air. (Id., ¶ 19.) Prior to this date, plaintiffs had not received any notice to leave their home. (Ibid.) Plaintiffs were able to enter the restricted gates by means of a friend and neighbor and have been in their home since August 2010, restricted by security guards who have been instructed not to allow plaintiffs to access their home or belongings. (Ibid.) Plaintiffs allege defendants have prevented plaintiffs from receiving visitors and that persons directed by defendants broke and entered into plaintiffs’ home. (Ibid.) In this lawsuit plaintiffs allege that defendants foreclosed and sold their house without proper authority or notice. (Ibid.)

Coldwell, Essex, and Harvey filed a cross-complaint on 11/1/11, against Cyprexx and others. The cross-complaint alleges causes of action for equitable indemnity, equitable contribution, and declaratory relief.

JP Morgan filed a motion for summary judgment on 2/20/13. Coldwell Banker, Harvey, and Essex filed a motion on 2/21/13. Cyprexx filed a motion on 2/22/13. The motions were heard on 10/8/13, and taken under submission. On 11/26/13, the Court, the Hon. Ralph W. Dau presiding, granted defendants’ motions and entered judgment in favor of defendants.

On 1/31/14, plaintiffs filed a notice of appeal of the judgment.

ANALYSIS:

Defendant JP Morgan moves for an order expunging the notice of pendency of action filed on 9/13/10 on the ground that judgment has been entered for JP Morgan and the entire action was dismissed, and therefore plaintiffs no longer have a real property claim.

As an initial matter, the Court notes that plaintiffs have filed a notice of appeal of the judgment in this action. “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916(a).) However, a proceeding to expunge a lis pendens is collateral to an appeal from a judgment in the underlying action, and an appeal of the judgment does not stay proceedings on a motion to expunge lis pendens. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.) Therefore, the Court will consider the instant motion.

When an action involves a claim affecting real property, a party to the action may, by recording a notice of lis pendens, preserve his or her rights or interest, if any, in the real property pending the final determination of the action. (La Paglia v. Sup. Ct.(1989) 215 Cal.App.3d 1322, 1326.) This notice provides constructive notice that the claim affecting the real property is still pending and, therefore, any taker of a subsequently created interest in that property thus takes that interest subject to any judgment rendered in the pending action. (Ibid.)

After a claimant records a notice of pendency of action, any party to the action may move to expunge the lis pendens on any or all of three statutory grounds: (1) the complaint does not contain a real property claim; (2) the plaintiff cannot establish the probable validity of his or her real property claim; or (3) adequate relief may be secured to the plaintiff by the moving party’s posting a bond. (Code Civ. Proc. §§ 405.30-405.33.)

When a motion to expunge a lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a real-property claim, and to evidence the probable validity of the claim based upon a preponderance of evidence. (Code Civ. Proc., §§ 405.32, 405.30; Kirkeby, 33 Cal. 4th at p. 648; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 9:436.)

Plaintiffs have not opposed the instant motion and otherwise make no showing that they have a real-property claim or that they have a probability of prevailing. As discussed above, judgment has been entered for the defendants and against plaintiffs. Therefore, plaintiffs no longer have any claims against defendant and it has already been determined that plaintiffs did not prevail on their claims.

JP Morgan’s motion to expunge lis pendens is GRANTED.