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1 Nicholas A. Rogers, California Bar No. 248900
Aaron A Hayes, California Bar No. 236122
2 O’TOOLE ROGERS, LLP
3650 Mt. Diablo Blvd, Suite 180
ELECTRONICALLY
3 Lafayette, CA 94549
Telephone: 925.284.4693 F I L E D
4 Fax: 925.433.6627 Superior Court of California,
County of San Francisco
nrogers@otoolerogers.com
5 ahayes@otoolerogers.com 02/22/2022
Clerk of the Court
BY: RONNIE OTERO
6 Attorneys for Defendant Deputy Clerk
WILLIAM RICHARD LAWSON
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
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11 MARK D. MCHALE, an individual; No. CGC-21-592767
MICHAEL J. GRANT, an individual
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 DEFENDANT WILLIAM RICHARD
vs. LAWSON’S MOTION TO EXPUNGE LIS
14 PENDENS (C.C.P. §§ 405.30, 405.31)
WILLIAM RICHARD LAWSON, an
15 individual, and DOES 1-50, inclusive, Date: March 29, 2022
Time: 9:30 a.m.
16 Defendants. Dept.: 501
17 Complaint Filed: June 11, 2021
Trial Date: N/A
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)
1 Defendant WILLIAM RICHARD LAWSON (“Lawson”) respectfully submits this
2 Memorandum of Points and Authorities in support of his Motion to Expunge Notice of Pendency of
3 Action (Lis Pendens) recorded in the Official Records of the City and County of San Francisco on
4 July 9, 2021, as Document No.: 2021108253 (the “Lis Pendens”) by plaintiffs Mark D. McHale and
5 Michael J. Grant (“Plaintiffs”) against Lawson’s real property located at 219 Eureka Street in San
6 Francisco, California (“Lawson’s Unit”).
7 I. INTRODUCTION
8 On July 9, 2021, Plaintiffs recorded a lis pendens on Lawson’s Unit. Plaintiffs did not record
9 a proof of service of the lis pendens or file a copy with this Court as required by law. Moreover,
10 Plaintiffs have not pled a valid “real property claim” in this action - a statutory prerequisite to
11 recordation of a lis pendens. As such the lien must be expunged and Plaintiffs should be ordered to
12 pay Lawson’s attorneys’ fees and costs incurred in connection with such expungement, as provided
13 by law.
14 II. STATEMENT OF THE CASE
15 A. Background of the Action
16 Plaintiffs’ Unit and Lawson’s Unit make up a two-unit condominium project (the “Eureka
17 Property”). (FAC, ¶1.) The Eureka Property is administered by an unincorporated homeowners’
18 association called the 219-221 Eureka Street Homeowners’ Association (“Association”). (FAC, ¶
19 3.) Plaintiffs and Lawson are members of the Association. (FAC, ¶¶ 7, 8.)
20 The Association is governed by its Declaration of Restrictions and Condominium Plan
21 (“Declaration”) and the Association’s Bylaws (“Bylaws”). (FAC, ¶ 4 and Exhibits (“Exs.”) 1 & 2
22 thereto.) The Association has a duty to maintain Common Area. (FAC, ¶¶ 9, 21, 32.) Common Area
23 includes the entire Eureka Property except for the Units and includes the “roof, lightwell, building
24 exterior, and rear stairs”. (FAC, ¶ 32.) The Association’s maintenance and repair obligations also
25 include “painting the building, [repairing] active termites/damage, and rear stair damage”. (FAC, ¶¶
26 9, 32.)
27 On June 11, 2021, Plaintiffs filed this action asserting causes of action against Lawson for
28 purported (1) breach of the Association’s governing documents, (2) breach of contract, (3) violation
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)
1 of the Davis-Stirling Common Interest Development Act (the “Act”), (4) negligence, (5) declaratory
2 relief, (6) nuisance, (7) conversion and (8) “right to foreclosure”. (See generally, FAC.)
3 The gravamen of Plaintiffs’ claims is that they have been harmed by Lawson’s alleged refusal “in
4 bad faith to repair and maintain the common area roof and lightwell, remediate the wood destroying
5 pest, remediate the dry rot, [and] repair the dangerous and decaying rear stairs”, which the FAC
6 otherwise avers are the Association’s responsibility.1 (FAC, ¶¶ 9, 21, 27, 32.)
7 B. The Void Lis Pendens
8 On July 9, 2021, Plaintiffs’ counsel signed and recorded a Notice of Pendency of Action (Lis
9 Pendens) (the “Lis Pendens”) against Lawson’s Unit with the City and County of San Francisco.
10 No proof of service attesting the Lis Pendens was served as required by Code of Civil Procedure
11 Section 405.22 was recorded with the Lis Pendens as required by Code of Civil Procedure section
12 405.23. Neither Plaintiffs nor their counsel caused the Lis Pendens to be filed with this Court as
13 required by Section 405.22.
14 III. THE LIS PENDENS IS VOID AND SHOULD BE EXPUNGED
15 A. The Lis Pendens is Void Given Plaintiffs’ Failure to Comply with Section 405.22
16 Section 405.22 requires that a lis pendens be served by on the adverse party by certified or
17 registered mail prior to its recording. Further, “[i]mmediately following recordation, a copy of the
18 notice shall also be filed with the court in which the action is pending”. (Section 405.22; see also,
19 Ray Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263.) Where a proof of
20 service has not been filed and/or the requirements of Section 405.22 have not otherwise been met -
21 such as in the failure to file a copy of the lis pendens with the Court - the lis pendens “shall be void
22 and invalid” pursuant to Section 405.23.
23 Here, as (1) no proof of service was recorded with the Lis Pendens, (2) the Lis Pendens was
24 filed before this action even commenced and, in any event, (3) the Lis Pendens was never filed with
25 this Court. As such, the Lis Pendens is “void and invalid” by operation of Section 405.23 and
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Concurrently with this Motion, Lawson has filed a demurrer to the FAC asserting, in part, that Plaintiffs
have failed to state any cause of action against him as they have averred no breach of any duty, he as opposed
28 to the non-party Association, owed Plaintiffs.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)
1 Lawson is entitled to expungement of the Lis Pendens pursuant to Code of Civil Procedure section
2 405.30 (“Section 405.30”).
3 B. Plaintiffs Have Not Pled a Prerequisite Real Property Claim
4 A lis pendens may only be recorded against a litigant’s real property where an action
5 concerns a “real property claim” affecting (1) “title to, or the right to possession of, specific real
6 property” or (2) the use of an easement identified in the pleading, other than certain statutory utility
7 easements. (C.C.P., § 405.4; see also, Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1860.)
8 Sections 405.30 and 405.31 permit an aggrieved party to seek expungement of a lis pendens
9 where the action on which it is based does not assert a real property claim. (See, Kirkeby v. Superior
10 Court (2004) 33 Cal.4th 642, 647 [“If the pleading filed by the claimant does not properly plead a
11 real property claim, the lis pendens must be expunged upon motion under [Section 405.31]”
12 (citations omitted)].) Moreover, the party opposing the motion for expungement bears the burden of
13 proving the existence of a real property claim. (Section 405.30; Kirkeby, supra 33 Cal.4th at 647
14 [“Unlike most other motions, when a motion to expunge is brought, the burden is on the party
15 opposing the motion…”])
16 Here, not one of Plaintiffs’ eight causes of action asserts a real property claim within the
17 scope of Section 405.4, as none assert any claim regarding title or possession of Lawson’s Unit.
18 Likewise, the FAC’s Prayer seeks no right or interest in title or possession to Lawson’s Unit, but
19 instead seeks only monetary damages and declaratory relief regarding common area maintenance
20 duties which includes a request to prohibit Lawson from encumbering or selling Lawson’s Unit.
21 (FAC, pp. 10-11.) There is no basis to restrict Lawson’s right’s to alienate or encumber his real
22 property as any proper assessment becomes his personal debt when levied and a lis pendens seeking
23 to secure a monetary judgment is improper. (Campbell v. Superior Court (2005) 132 Cal.App.4th
24 904, 912-913; Park Place Estates Homeowners Association v. Naber (1994) 29 Cal.App.4th 427,
25 431-132, n. 7; Amended Complaint, Ex. 1, at § 4.1.) In short, the FAC does not, on its face, assert a
26 real property claim nor can Plaintiffs meet their burden of proving it does in opposition to this
27 Motion.
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)
1 IV. LAWSON IS ENTITLED TO RECOVER ATTORNEYS’ FEES AND COSTS
2 Code of Civil Procedure Section 405.38 provides that the prevailing party on a motion to
3 expunge a lis pendens shall be awarded reasonable attorneys’ fees and costs in connection therewith,
4 unless the Court finds the losing party acted with substantial justification or such an award would
5 otherwise be unjust. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1018.)
6 Here, Plaintiffs cannot show they acted with substantial justification in recording the Lis
7 Pendens in disregard of their service and filing obligations under Section 405.22 and in
8 consideration of their failure to file a requisite real property claim. As such, Lawson is entitled to
9 an award of attorneys’ fees and costs pursuant to Section 405.38 in the amount of $3,990. (Rogers
10 Decl., ¶¶ 7-11.)
11 V. CONCLUSION
12 Based upon the foregoing, Lawson respectfully requests this Court grant the instant Motion,
13 order immediate expungement of the patently void Lis Pendens, and award him attorneys’ fees and
14 costs incurred in connection with seeking such expungement.
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16 Date: February 22, 2022 O’TOOLE ROGERS, LLP
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By: ____________________________________
18 Nicholas A. Rogers
Aaron A. Hayes
19 Attorneys for Defendant
WILLIAM RICHARD LAWSON
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)
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1 Nicholas A. Rogers, California Bar No. 248900 Aaron A Hayes, California Bar No. 236122 2 O’TOOLE ROGERS, LLP 3650 Mt. Diablo Blvd, Suite 180 ELECTRONICALLY 3 Lafayette, CA 94549 Telephone: 925.284.4693 F I L E D 4 Fax: 925.433.6627 Superior Court of California, County of San Francisco nrogers@otoolerogers.com 5 ahayes@otoolerogers.com 02/22/2022 Clerk of the Court BY: RONNIE OTERO 6 Attorneys for Defendant Deputy Clerk WILLIAM RICHARD LAWSON 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 11 MARK D. MCHALE, an individual; No. CGC-21-592767 MICHAEL J. GRANT, an individual 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 DEFENDANT WILLIAM RICHARD vs. LAWSON’S MOTION TO EXPUNGE LIS 14 PENDENS (C.C.P. §§ 405.30, 405.31) WILLIAM RICHARD LAWSON, an 15 individual, and DOES 1-50, inclusive, Date: March 29, 2022 Time: 9:30 a.m. 16 Defendants. Dept.: 501 17 Complaint Filed: June 11, 2021 Trial Date: N/A 18 / 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31) 1 Defendant WILLIAM RICHARD LAWSON (“Lawson”) respectfully submits this 2 Memorandum of Points and Authorities in support of his Motion to Expunge Notice of Pendency of 3 Action (Lis Pendens) recorded in the Official Records of the City and County of San Francisco on 4 July 9, 2021, as Document No.: 2021108253 (the “Lis Pendens”) by plaintiffs Mark D. McHale and 5 Michael J. Grant (“Plaintiffs”) against Lawson’s real property located at 219 Eureka Street in San 6 Francisco, California (“Lawson’s Unit”). 7 I. INTRODUCTION 8 On July 9, 2021, Plaintiffs recorded a lis pendens on Lawson’s Unit. Plaintiffs did not record 9 a proof of service of the lis pendens or file a copy with this Court as required by law. Moreover, 10 Plaintiffs have not pled a valid “real property claim” in this action - a statutory prerequisite to 11 recordation of a lis pendens. As such the lien must be expunged and Plaintiffs should be ordered to 12 pay Lawson’s attorneys’ fees and costs incurred in connection with such expungement, as provided 13 by law. 14 II. STATEMENT OF THE CASE 15 A. Background of the Action 16 Plaintiffs’ Unit and Lawson’s Unit make up a two-unit condominium project (the “Eureka 17 Property”). (FAC, ¶1.) The Eureka Property is administered by an unincorporated homeowners’ 18 association called the 219-221 Eureka Street Homeowners’ Association (“Association”). (FAC, ¶ 19 3.) Plaintiffs and Lawson are members of the Association. (FAC, ¶¶ 7, 8.) 20 The Association is governed by its Declaration of Restrictions and Condominium Plan 21 (“Declaration”) and the Association’s Bylaws (“Bylaws”). (FAC, ¶ 4 and Exhibits (“Exs.”) 1 & 2 22 thereto.) The Association has a duty to maintain Common Area. (FAC, ¶¶ 9, 21, 32.) Common Area 23 includes the entire Eureka Property except for the Units and includes the “roof, lightwell, building 24 exterior, and rear stairs”. (FAC, ¶ 32.) The Association’s maintenance and repair obligations also 25 include “painting the building, [repairing] active termites/damage, and rear stair damage”. (FAC, ¶¶ 26 9, 32.) 27 On June 11, 2021, Plaintiffs filed this action asserting causes of action against Lawson for 28 purported (1) breach of the Association’s governing documents, (2) breach of contract, (3) violation 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31) 1 of the Davis-Stirling Common Interest Development Act (the “Act”), (4) negligence, (5) declaratory 2 relief, (6) nuisance, (7) conversion and (8) “right to foreclosure”. (See generally, FAC.) 3 The gravamen of Plaintiffs’ claims is that they have been harmed by Lawson’s alleged refusal “in 4 bad faith to repair and maintain the common area roof and lightwell, remediate the wood destroying 5 pest, remediate the dry rot, [and] repair the dangerous and decaying rear stairs”, which the FAC 6 otherwise avers are the Association’s responsibility.1 (FAC, ¶¶ 9, 21, 27, 32.) 7 B. The Void Lis Pendens 8 On July 9, 2021, Plaintiffs’ counsel signed and recorded a Notice of Pendency of Action (Lis 9 Pendens) (the “Lis Pendens”) against Lawson’s Unit with the City and County of San Francisco. 10 No proof of service attesting the Lis Pendens was served as required by Code of Civil Procedure 11 Section 405.22 was recorded with the Lis Pendens as required by Code of Civil Procedure section 12 405.23. Neither Plaintiffs nor their counsel caused the Lis Pendens to be filed with this Court as 13 required by Section 405.22. 14 III. THE LIS PENDENS IS VOID AND SHOULD BE EXPUNGED 15 A. The Lis Pendens is Void Given Plaintiffs’ Failure to Comply with Section 405.22 16 Section 405.22 requires that a lis pendens be served by on the adverse party by certified or 17 registered mail prior to its recording. Further, “[i]mmediately following recordation, a copy of the 18 notice shall also be filed with the court in which the action is pending”. (Section 405.22; see also, 19 Ray Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263.) Where a proof of 20 service has not been filed and/or the requirements of Section 405.22 have not otherwise been met - 21 such as in the failure to file a copy of the lis pendens with the Court - the lis pendens “shall be void 22 and invalid” pursuant to Section 405.23. 23 Here, as (1) no proof of service was recorded with the Lis Pendens, (2) the Lis Pendens was 24 filed before this action even commenced and, in any event, (3) the Lis Pendens was never filed with 25 this Court. As such, the Lis Pendens is “void and invalid” by operation of Section 405.23 and 26 27 1 Concurrently with this Motion, Lawson has filed a demurrer to the FAC asserting, in part, that Plaintiffs have failed to state any cause of action against him as they have averred no breach of any duty, he as opposed 28 to the non-party Association, owed Plaintiffs. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31) 1 Lawson is entitled to expungement of the Lis Pendens pursuant to Code of Civil Procedure section 2 405.30 (“Section 405.30”). 3 B. Plaintiffs Have Not Pled a Prerequisite Real Property Claim 4 A lis pendens may only be recorded against a litigant’s real property where an action 5 concerns a “real property claim” affecting (1) “title to, or the right to possession of, specific real 6 property” or (2) the use of an easement identified in the pleading, other than certain statutory utility 7 easements. (C.C.P., § 405.4; see also, Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1860.) 8 Sections 405.30 and 405.31 permit an aggrieved party to seek expungement of a lis pendens 9 where the action on which it is based does not assert a real property claim. (See, Kirkeby v. Superior 10 Court (2004) 33 Cal.4th 642, 647 [“If the pleading filed by the claimant does not properly plead a 11 real property claim, the lis pendens must be expunged upon motion under [Section 405.31]” 12 (citations omitted)].) Moreover, the party opposing the motion for expungement bears the burden of 13 proving the existence of a real property claim. (Section 405.30; Kirkeby, supra 33 Cal.4th at 647 14 [“Unlike most other motions, when a motion to expunge is brought, the burden is on the party 15 opposing the motion…”]) 16 Here, not one of Plaintiffs’ eight causes of action asserts a real property claim within the 17 scope of Section 405.4, as none assert any claim regarding title or possession of Lawson’s Unit. 18 Likewise, the FAC’s Prayer seeks no right or interest in title or possession to Lawson’s Unit, but 19 instead seeks only monetary damages and declaratory relief regarding common area maintenance 20 duties which includes a request to prohibit Lawson from encumbering or selling Lawson’s Unit. 21 (FAC, pp. 10-11.) There is no basis to restrict Lawson’s right’s to alienate or encumber his real 22 property as any proper assessment becomes his personal debt when levied and a lis pendens seeking 23 to secure a monetary judgment is improper. (Campbell v. Superior Court (2005) 132 Cal.App.4th 24 904, 912-913; Park Place Estates Homeowners Association v. Naber (1994) 29 Cal.App.4th 427, 25 431-132, n. 7; Amended Complaint, Ex. 1, at § 4.1.) In short, the FAC does not, on its face, assert a 26 real property claim nor can Plaintiffs meet their burden of proving it does in opposition to this 27 Motion. 28 /// 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31) 1 IV. LAWSON IS ENTITLED TO RECOVER ATTORNEYS’ FEES AND COSTS 2 Code of Civil Procedure Section 405.38 provides that the prevailing party on a motion to 3 expunge a lis pendens shall be awarded reasonable attorneys’ fees and costs in connection therewith, 4 unless the Court finds the losing party acted with substantial justification or such an award would 5 otherwise be unjust. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1018.) 6 Here, Plaintiffs cannot show they acted with substantial justification in recording the Lis 7 Pendens in disregard of their service and filing obligations under Section 405.22 and in 8 consideration of their failure to file a requisite real property claim. As such, Lawson is entitled to 9 an award of attorneys’ fees and costs pursuant to Section 405.38 in the amount of $3,990. (Rogers 10 Decl., ¶¶ 7-11.) 11 V. CONCLUSION 12 Based upon the foregoing, Lawson respectfully requests this Court grant the instant Motion, 13 order immediate expungement of the patently void Lis Pendens, and award him attorneys’ fees and 14 costs incurred in connection with seeking such expungement. 15 16 Date: February 22, 2022 O’TOOLE ROGERS, LLP 17 By: ____________________________________ 18 Nicholas A. Rogers Aaron A. Hayes 19 Attorneys for Defendant WILLIAM RICHARD LAWSON 20 21 22 23 24 25 26 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WILLIAM RICHARD LAWSON’S MOTION TO EXPUNGE LIS PENDENS (C.C.P. §§ 405.30, 405.31)