Filed 6/30/15 (unmodified opinion attached) 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

MIRA OVERSEAS CONSULTING LTD., 

 Plaintiff and Respondent, 

 v. 

MUSE FAMILY ENTERPRISES, LTD. 

et al., 

 Defendants and Appellants; 

CARMEN COPPLE SILVA, Individually 

and as Trustee, etc., 

 Defendant and Respondent. 

 B254298 

 (Los Angeles County 

 Super. Ct. No. BC476282) 

 ORDER MODIFYING OPINION 

 AND DENYING PETITION FOR 

 REHEARING 

 [NO CHANGE IN JUDGMENT]

THE COURT:*

It is ordered that the opinion filed herein on June 2, 2015, be modified as follows: 

On page 2, the first sentence of the last full paragraph, the words “(whom he later 

remarried),” are deleted so the sentence now reads: 

Meanwhile, during the divorce proceedings, David’s former wife claimed 

that he hid assets from her, including the property. 

There is no change in the judgment. 

 Plaintiff and respondent’s petition for rehearing is denied.

 *

 BOREN, P. J. ASHMANN-GERST, J. CHAVEZ, J. 
Filed 6/2/15 (unmodified opinion) 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

MIRA OVERSEAS CONSULTING LTD., 

 Plaintiff and Respondent, 

 v. 

MUSE FAMILY ENTERPRISES, LTD. 

et al., 

 Defendants and Appellants; 

CARMEN COPPLE SILVA, Individually 

and as Trustee, etc., 

 Defendant and Respondent. 

 B254298 

 (Los Angeles County 

 Super. Ct. No. BC476282) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. 

Richard L. Fruin, Jr., Judge. Reversed. 

 Locke Lord, Jon L. Rewinski; and Christopher Dove for Defendants and 

Appellants. 

 Law Offices of Saied Kashani and Saied Kashani for Defendant and Respondent. 

 Kendrick Jan; Chassman & Seelig and Mark B. Chassman for Plaintiff and 

Respondent. 

_________________________ 
2

 The question presented is: Does a judgment granting a fraudulent transfer claim, 

as well as monetary damages, relate back to the date on which the claimants recorded a 

lis pendens? We conclude that it does. Following a bench trial on reciprocal claims for 

declaratory relief regarding the priority of judgment liens, the trial court determined that 

the judgment lien of respondent Mira Overseas Consulting, Ltd. (Mira) had priority over 

appellants’ Muse Family Enterprises, Ltd. (the Muse Parties) judgment lien because it 

was filed first. We reverse, finding that the Muse Parties’ judgment lien relates back to 

the date they recorded a lis pendens. 

FACTUAL AND PROCEDURAL BACKGROUND 

The Underlying Facts1

The Muse Parties are 20 investor entities that made loans to BTM Funding, Inc. 

(BTM), a company wholly owned by David T. Smith (David). In 2008, David used BTM 

to purchase a residence in Pacific Palisades, California (the property) for approximately 

$10 million. David had BTM take title to the property to hide it from his former wife 

during their contentious divorce proceedings. David married respondent Carmen Copple 

Silva (Carmen), who is also trustee of the Carmen Copple Silva Revocable Living Trust 

(trust). In November 2008, David caused to be executed a quitclaim deed which 

transferred the property from BTM to himself. On the same day, David signed a 

quitclaim deed transferring the property to Carmen. A year later, Carmen executed a 

quitclaim deed transferring the property from herself to her trust. None of these 

quitclaim deeds were recorded until 2009, after financial problems with BTM surfaced. 

Because David had listed the property as the primary asset of BTM, the effect of the 

quitclaim deeds was to render BTM insolvent. 

 Meanwhile, during the divorce proceedings, David’s former wife (whom he later 

remarried) claimed that he hid assets from her, including the property. She and David 

eventually settled the issue by having Mira, a British Virgin Islands entity, originally 

beneficially owned by David transferred to her. 

 1

 These facts are taken from our earlier opinion. (Muse Family Enterprises, Ltd. v. 

BTM Funding, Inc. (Sept. 30, 2014, B247757) [nonpub. opn.].)
3

The Los Angeles Action

On September 14, 2010, the Muse Parties filed a complaint in the Los Angeles 

Superior Court against BTM, David, Carmen and her trust (the Los Angeles Action). 

The complaint alleged causes of action for breach of contract and fraud, and also sought 

to set aside the quitclaim deeds as fraudulent transfers. 

 On September 16, 2010, the Muse Parties recorded in the county recorder’s office 

a “Notice of Pendency of Action” (the lis pendens), advising that the Los Angeles Action 

“affects title to or right to possess” the property. 

 David let BTM’s default be taken. In July 2011, the remaining parties entered into 

a stipulation that BTM breached contracts with the Muse Parties, causing damages of 

approximately $16 million plus interest. A judgment following this stipulation was 

entered on October 22, 2012. The case then proceeded to trial in October and November 

2012 on the issues of fraudulent transfer and alter ego. A jury found that David was the 

alter ego of BTM, that the transfer of the property from BTM to David was fraudulent, 

and that David caused $10 million in damages with respect to the fraudulent transfer. An 

amended judgment was entered on January 25, 2013, awarding damages of 

$21,280,561.27 to the Muse Parties against BTM and David as its alter ego. The 

amended judgment also nullified all of the quitclaim deeds as fraudulent transfers, which 

resulted in title to the property reverting back to BTM. The amended judgment was 

recorded with the county recorder on February 26, 2013. BTM, David, Carmen and her 

trust appealed the amended judgment, which we affirmed. (Muse Family Enterprises, 

Ltd. v. BTM Funding, Inc., supra, B247757.) 

The Santa Monica Action 

On March 4, 2011, about six months after the Los Angeles Action commenced, 

respondent Mira, which was now owned by David’s former wife, filed a first amended 

complaint (FAC) in the Los Angeles Superior Court in Santa Monica against BTM, 

David, Carmen and her trust (the Santa Monica Action). The FAC alleged breach of 

contract, seeking to recover a $4.66 million loan made to BTM for the purchase of the 
4

property, which David had assumed. The FAC also asserted a fraudulent transfer claim, 

challenging the same title transfers as the Muse Parties challenged. 

 A few months later, Mira and the defendants in the Santa Monica Action entered 

into a written agreement, and a stipulated judgment was entered on June 6, 2011. The 

defendants stipulated to a money judgment against themselves for $5,428,900, and Mira 

stipulated that it would enforce the judgment only through levy on the property. An 

abstract of Mira’s judgment was recorded on July 15, 2011. 

 The defendants in the Santa Monica Action were the same defendants in the 

Los Angeles Action and were represented by the same counsel. None of the defendants, 

however, filed a notice of related case in either action or otherwise notified the Muse 

Parties of the Santa Monica Action. The Muse Parties first learned about the Santa 

Monica Action when they took David’s deposition on August 29, 2011, at which time 

David’s counsel provided copies of the settlement agreement, the stipulated judgment, 

and the recorded abstract of judgment from the Santa Monica Action. 

The Instant Action 

Mira initiated the instant action by filing a complaint against the Muse Parties, 

BTM, David, Carmen and her trust on January 3, 2012, seeking a declaration that its 

judgment lien was superior and senior to any lien that might be obtained by the Muse 

Parties with respect to the property. The Muse Parties filed a cross-complaint, seeking a 

declaration that their anticipated judgment lien related back to the recording of their 

lis pendens and was therefore superior. The Muse Parties also sought a declaration that 

Mira’s judgment was collusive and therefore void. 

 The instant case was tried to the court in April 2013. On November 20, 2013, the 

court issued a lengthy statement of decision, finding that the Muse Parties’ judgment did 

not relate back to the lis pendens and that the Mira judgment was not void due to 

extrinsic fraud. Judgment was entered on December 17, 2013. The Muse Parties timely 

filed this appeal. 
5

DISCUSSION 

I. Lis Pendens 

As our Supreme Court explained in Kirkeby v. Superior Court (2004) 33 Cal.4th 

642 (Kirkeby): “‘A lis pendens is a recorded document giving constructive notice that an 

action has been filed affecting title or right to possession of the real property described in 

the notice.’ [Citation.] A lis pendens may be filed by any party in an action who asserts 

a ‘real property claim.’ (Code Civ. Proc., § 405.20.) Section 405.4 defines a “‘Real 

property claim’” as ‘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 . . . .’ 

‘If the pleading filed by the claimant does not properly plead a real property claim, the lis 

pendens must be expunged upon motion under CCP 405.31.’ [Citation.]” (Kirkeby, 

supra, at p. 647, fn. omitted.) 

 Because a lis pendens provides constructive notice of the litigation, “any 

judgment later obtained in the action relates back to the filing of the lis pendens.” 

(Slintak v. Buckeye Retirement Co., L.L.C., Ltd. (2006) 139 Cal.App.4th 575, 586.) “A 

lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and 

any party acquiring an interest in the property after the action is filed will be bound by 

the judgment.” (Id. at pp. 586–587; Stagen v. Stewart-West Coast Title Co. (1983) 149 

Cal.App.3d 114, 123 [“A judgment favorable to the plaintiff relates to, and receives its 

priority from, the date the lis pendens is recorded, and is senior and prior to any interests 

in the property acquired after that date”].) As set forth in Code of Civil Procedure, 

section 405.24: “From the time of recording the notice of pendency of action, a 

purchaser, encumbrancer, or other transferee of the real property described in the notice 

shall be deemed to have constructive notice of the pendency of the noticed action as it 

relates to the real property and only of its pendency against parties not fictitiously named. 

The rights and interest of the claimant in the property, as ultimately determined in the 

pending noticed action, shall relate back to the date of the recording of the notice.” 

(Italics added.) 
6

II. Fraudulent Conveyance

 A fraudulent conveyance claim is set forth in the Uniform Fraudulent Transfer Act 

(UFTA) (Civil Code section 3439 et seq.). As Kirkeby explained, “‘[a] fraudulent 

conveyance is a transfer by the debtor of property to a third person undertaken with the 

intent to prevent a creditor from reaching that interest to satisfy its claim.’” (Kirkeby, 

supra, 33 Cal.4th at p. 648.) Civil Code section 3439.07 sets forth the remedies in a 

fraudulent conveyance action, including “Avoidance of the transfer or obligation to the 

extent necessary to satisfy the creditor’s claim.” (Civ. Code, § 3439.07, subd. (a)(1).) 

III. The Kirkeby Case

 In Kirkeby, our Supreme Court was asked to decide whether a fraudulent 

conveyance claim affects title to or the right to possess real property thereby supporting 

the recording of a lis pendens. (Kirkeby, supra, 33 Cal.4th at p. 645.) The Supreme 

Court concluded that it does. (Ibid.) 

The plaintiff filed a complaint alleging 27 causes of action, including a fraudulent 

conveyance cause of action, and recorded a lis pendens. (Kirkeby, supra, 33 Cal.4th at 

p. 646.) The complaint requested that the alleged fraudulent transfers be voided to the 

extent necessary to satisfy the other claims set forth in the plaintiff’s complaint. (Ibid.) 

That remedy was the plaintiff’s only interest in the property. The trial court granted a 

motion to expunge the lis pendens and the appellate court affirmed, finding that the basis 

of the complaint was to recover money and had nothing to do with real property. (Id. at 

pp. 646–647.) 

The Supreme Court reversed: “[A] fraudulent conveyance claim requesting relief 

pursuant to Civil Code section 3439.07, subdivision (a)(1), if successful, may result in the 

voiding of a transfer of title of specific real property. By definition, the voiding of a 

transfer of real property will affect title to or possession of real property. Therefore, a 

fraudulent conveyance action seeking avoidance of a transfer under subdivision (a)(1) of 

Civil Code section 3439.07 clearly ‘affects title to, or the right to possession of’ (Code 

Civ. Proc., § 405.4) real property and is therefore a real property claim for the purposes 

of the lis pendens statutes.” (Kirkeby, supra, 33 Cal.4th at p. 649.) 
7

IV. The Muse Parties’ Judgment Lien Relates Back to the Recording of the 

Lis Pendens 

 In ruling on the parties’ competing claims for priority of their judgment liens, the 

trial court in the instant action stated that Kirkeby was “silent as to whether a judgment 

obtained on a fraudulent transfer claim relates back to the filing of the lis pendens in 

instances where the judgment creditor did not allege a direct interest in the property.” 

The trial court also stated that the Muse Parties only sought a money judgment and filed 

their fraudulent transfer claim merely to obtain return of the title in the property to BTM 

so that their eventual judgment could be levied against BTM’s interest in the property. 

The trial court also noted that the Muse Parties did not seek any provisional remedies 

such as attachments, injunctions, or the appointment of receivers. 

 But the trial court’s analysis ignores that the instant action involves the same type 

of property claim as Kirkeby. The plaintiff in Kirkeby, like the Muse Parties here, only 

filed a fraudulent transfer claim to void the transfers “to the extent necessary to satisfy 

the claims set forth in her complaint.” (Kirkeby, supra, 33 Cal.4th at p. 646.) In Kirkeby, 

there were 26 other claims that did not involve the real property. Yet, because the UFTA 

specifically allows the remedy of “[a]voidance of the transfer or obligation to the extent 

necessary to satisfy the creditor’s claim” (Civ. Code, § 3439.07, subd. (a)(1)), the 

Kirkeby court held that a fraudulent conveyance claim seeking avoidance of a transfer “is 

therefore a real property claim for the purposes of the lis pendens statutes.” (Kirkeby, 

supra, at p. 649.) The necessary corollary to this rule is that a successful claimant’s 

rights and interests in the property relate back to the recording of the claimant’s 

lis pendens. 

 Additionally, there is no requirement that a party filing a fraudulent transfer claim 

pursue other remedies under the UFTA. “The UFTA expressly provides for remedies 

such as attachments, injunctions, and the appointment of receivers.” (Kirkeby, supra, 33 

Cal.4th at pp. 651–652.) “‘[A]lthough [the UFTA] does not provide for notices of 

lis pendens, it does not exclude them either.’” (Kirkeby, at p. 652.) The Kirkeby court 

described the language in Civil Code section 3439.07, subdivision (a)(3)(C) that a 
8

creditor bringing a UFTA claim is entitled to “[a]ny other relief the circumstances may 

require” as “broad,” supporting the recording of a lis pendens. (Kirkeby, at p. 652.) 

Thus, the Kirkeby court saw nothing wrong with the plaintiff’s election of the lis pendens 

remedy instead of the attachment or other express remedies of the UFTA. 

 In sum, we conclude that because the Muse Parties indisputably had the right to 

record a lis pendens with respect to their fraudulent transfer claim, their rights and 

interest in the property (i.e., the avoidance of transfers of the property to satisfy their 

claims) relate back to the date they recorded their lis pendens. Because this date was 

earlier than the date Mira recorded its abstract of judgment, the Muse Parties’ judgment 

lien has priority. 

 In reaching this conclusion, we acknowledge the argument of respondent Carmen, 

as individual and trustee, that the Muse Parties have no lien on the property because they 

never recorded an abstract of judgment. Carmen correctly notes that, except in certain 

situations not applicable here, a judgment lien on real property is created by recording an 

abstract of judgment, rather than recording the judgment itself. (Code Civ. Proc., 

§ 697.310. subd. (a).) Carmen points out that the Muse Parties never produced a 

recorded abstract of judgment during the trial court litigation in the instant case. 

However, it is clear from the record, as Carmen concedes, that the trial court and the 

parties treated the Muse Parties’ recorded amended judgment as an abstract. In any 

event, the Muse Parties recorded an abstract of judgment on November 5, 2012, which 

abstract was originally issued on October 31, 2012. This is the original judgment against 

BTM following the stipulation. The Muse Parties then recorded an abstract of the 

amended judgment on February 7, 2014, which abstract was issued on February 6, 2014, 

relating to the issues later decided at trial. The Muse Parties have asked us to augment 

the record to include their first recorded abstract of judgment, which is part of the record 

in the instant case as an exhibit to the Muse Parties’ objections to the statement of 

decision. They have also asked us to take judicial notice of their second recorded abstract 

of the amended judgment. We grant these requests. Carmen did not raise this issue 
9

below. Had she done so, the Muse Parties could have easily pointed to the recorded 

abstract of judgment.2

 

DISPOSITION 

The judgment is reversed. The Muse Parties are entitled to recover their costs on 

appeal. 

 CERTIFIED FOR PUBLICATION.

 __________________________, J. 

 ASHMANN-GERST 

We concur: 

_____________________________, P. J. 

BOREN 

____________________________, J. 

CHAVEZ 

 2

 In light of our conclusion, we need not address the Muse Parties’ argument that 

the Mira judgment should have been set aside as the product of extrinsic fraud.