United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GEORGE ALVARA,

Plaintiff,

 v.

AURORA LOAN SERVICES, INC. (a

Delaware Corporation); HOMEFIELD

FINANCIAL, INC. (a California

Corporation); QUALITY LOAN SERVICES

CORPORATION (a California

Corporation), and DOES 1 through

50, inclusive, 

Defendants.

 

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No. C-09-1512 SC

ORDER EXPUNGING LIS

PENDENS 

Following this Court's dismissal of Plaintiff's Complaint,

Docket No. 11 ("Dismissal Order"), this Court refused to grant

Plaintiff an extension of time to file his untimely Amended

Complaint, and dismissed the suit with prejudice, Docket No. 16

("Extension Order"). Defendant Aurora Loan Services has now filed

a Motion to Expunge Lis Pendens and Request for Award of Attorney

Fees and Costs ("Motion"). Docket No. 17. 

Under California Code of Civil Procedure section 405.31, "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 has previously found that Plaintiff failed to successfully

plead a real property claim. Plaintiff failed to timely correct

his deficient pleading, and his claims were dismissed with

Case 3:09-cv-01512-SC Document 18 Filed 01/05/10 Page 1 of 2
United States District Court

For the Northern District of California

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prejudice. The Court therefore EXPUNGES the Notice of Action

Pending (Lis Pendens) dated January 23, 2009, signed by attorney

James Curtis, on the subject property 193 1st Avenue, Daly City,

California 94014, Assessor's Parcel No. 006-252-070. 

Aurora also seeks attorney fees under section 405.38:

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.

Cal. Civ. Proc. Code § 405.38. The Court finds that this suit

does not warrant the imposition of fees and costs. Plaintiff's

Complaint was initially dismissed without prejudice, and it was

Plaintiff's attorney who failed to properly prosecute this and

other actions that resulted in this suit's premature dismissal. 

See Extension Order at 3-4. In addition, Plaintiff's house was

foreclosed upon because of his inability to pay his mortgage. 

Under these circumstances, the imposition of attorney fees against

Plaintiff himself would not be just. Consequently, Plaintiff's

request for attorney fees and costs is DENIED.

Aurora's Motion to expunge lis pendens on the subject

property is GRANTED and its related request for attorney fees and

costs is DENIED.

IT IS SO ORDERED.

January 5, 2010

____________________________

UNITED STATES DISTRICT JUDGE

Case 3:09-cv-01512-SC Document 18 Filed 01/05/10 Page 2 of 2