Opinion
2:23-cv-00454-TL
03-26-2024
JAYAKUMAR SUNDARAN NAIR et al., Plaintiffs, v. ALEX TOTH et al., Defendants.
ORDER ON EX PARTE MOTION TO CANCEL LIS PENDENS
Tana Lin, United States District Judge
This matter is before the Court on Defendant Dean Kalivas's Ex Parte Motion to Cancel Lis Pendens. Dkt. No. 24. Defendant argues that his “house-cleaning motion” is appropriate because the Court dismissed this case without prejudice on August 30, 2023. Defendant notes that despite the case being dismissed, on September 28, 2023, Plaintiff Jayakrishnan Nair referenced this case as cause for encumbering the title to two properties that are claimed to be at issue in this matter pursuant to RCW 4.28.320. Dkt. No. 24 at 1-2. That same day, Plaintiffs filed a motion to reconsider the Court's order of dismissal, which was eventually denied. See Dkt. Nos. 17, 19. Plaintiffs filed a notice of appeal to the Ninth Circuit on November 20, 2023. See Dkt. No. 20. Defendant Kalivas filed an ex parte motion to cancel lis pendens on December 4, 2023. Dkt. No. 24. The appeal is still pending at the Ninth Circuit.
A “lis pendens” is an “instrument having the effect of clouding the title to real property.” RCW 4.28.328(1)(a). A court has discretion to cancel a lis pendens when three conditions are met: (1) the action must be settled, discontinued, or abated, (2) an aggrieved person must move to cancel the lis pendens, and (3) the aggrieved person must show good cause and provide proper notice. RCW 4.28.320; see also Suess v. Nw. Timber & Dev., Inc., 24 Wn.App. 2d 1010, 2022 WL 14297047, at *15 (2022) (unpublished) (quoting Guest v. Lange, 195 Wn.App. 330, 336, 381 P.3d 130 (2016)). “[A] notice of appeal, by transporting a case from a trial court to a court of appeals, renders the action in that case not ‘settled, discontinued, or abated.'” Guest, 195 Wn.App. at 340. Further, “the weight of authority from other jurisdictions suggests that an appeal preserves the lis pendens.” Id. at 339.
The Court finds that this case is not fully “settled, discontinued, or abated” due to the pending Ninth Circuit appeal. See, e.g., Suess, 2022 WL 14297047 at *15. Therefore, the Court DENIES Defendant's motion without prejudice.