Judge: Ronald F. Frank, Case: 21TRCV00654, Date: 2024-02-27 Tentative Ruling
Case Number: 21TRCV00654 Hearing Date: February 27, 2024 Dept: 8
Tentative
Ruling¿
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HEARING DATE: February 27, 2024¿¿
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CASE NUMBER: 21TRCV00654
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CASE NAME: Jiali Yan v. Michael
Antony Forbes dba Forbes Estates, LLC, et al. ¿¿¿
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MOVING PARTY: Nonparty Movant, PennyMac Loan Services,
LLC
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RESPONDING PARTY: Plaintiff, Jiali Yan (No
Opposition)
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TRIAL DATE: None set.
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MOTION:¿ (1) Motion for Leave to Intervene to Expunge Lis Pendens
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Tentative Rulings: (1) PennyMac’s Motion for
Leave to Intervene to Expunge Lis Pendens is DENIED without prejudice. There is no proposed Complaint in
Intervention or Answer in Intervention submitted with the motion
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I. BACKGROUND¿¿
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A. Factual¿¿
On September 9, 2021, Plaintiff,
Jiali Yan (“Plaintiff”) filed a Complaint against Defendant, Michael Antony
Forbes/Forbes Estates, LLC. The Complaint alleges a cause of action for Fraud.
On November 16, 2021, Defendant, Michael Antony Forbes filed a cross-complaint
against Jiali Yan.
Nonparty Movant PennyMac
Loan Services, LLC (“PennyMac”) has now filed a Motion to Intervene and For
Expungement of Lis Pendens.
B. Procedural¿¿
On December
15, 2023, PennyMac file this Motion to Intervene and to Expunge Lis Pendens. To
date, no opposition has been filed.
II. REQUEST FOR JUDICIAL
NOTICE
PennyMac
filed a Request for Judicial Notice requesting this Court take judicial notice
of the following documents:
1. Exhibit
1: Deed of Trust recorded in the Official Records of the Clark County, Nevada
Recorder’s Office on November 23, 2011 as Instrument No. 20111123-0002152.
2. Exhibit
2: Assignment of Deed of Trust recorded in the Official Records of the Clark
County, Nevada Recorder’s Office on January 29, 2013 as Instrument No.
20130129-0000875.
3. Exhibit
3: Assignment of Deed of Trust recorded in the Official Records of the Clark
County, Nevada Recorder’s Office on July 17, 2018 as Instrument No.
20180717-0001109.
4. Exhibit
4: Notice of Pendency of Action recorded in the Official Records of the Clark
County, Nevada Recorder’s Office on December 7, 2021 as Instrument No.
20211207-0004461.
5. Exhibit
5: Statement of Decision After Court Trial entered in Case No. 21TRCV00654 on
April 18, 2023
The Court GRANTS
PennyMac’s request and takes judicial notice of the above documents.
III. ANALYSIS¿
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A. Motion
for Leave to Intervene
Non-party
and proposed intervenor, PennyMac seeks leave to intervene in this action
because it notes Plaintiff recorded a notice of pendency of action in the
official records of the recorder of Clark County, Nevada on December 7, 2021 as
Instrument No. 20211207-0004461. PennyMac contends that it moves to expunge the
Lis Pendens on the grounds that a Statement of Decision after Court Trial has
been entered by the Court, with the Court finding that neither
Plaintiff/Cross-Defendant Jiali Yan nor Defendant/Cross-Complainant Michael A.
Forbes dba Forbes Estates LLC carried its burden of proof at trial.
A party to an action who asserts a real
property claim may record a notice of pendency of action (lis pendens) in which that real property claim is
alleged. (Code Civ. Proc., §
405.20.) Any notice of pendency of action shall be void and invalid as to
any adverse party or owner of record unless the requirements of Code of Civil
Procedure section 405.22 are met for that party or owner and a proof of service
in the form and content specified in CCP section 1013a has been recorded with
the notice of pendency of action. (Code Civ. Proc., § 405.23.)
At any time
after notice of pendency of action has been recorded, any party, or any
nonparty with an interest in the real property affected thereby, may apply to
the court in which the action is pending to expunge the notice. (Code
Civ. Proc., § 405.30.) A person
who is not a party to the action, however, shall obtain leave to intervene from
the court at or before the time the party brings the motion to expunge the
notice. (Id.)
PennyMac asserts that intervention
is proper because Plaintiff’s Lis Pendens is clouding title to the property. Intervention
is the procedure whereby someone not previously served as a party to an action
(or ordered joined as a party) may nevertheless become a party. An intervention
takes place when the court grants leave to a nonparty to join the plaintiff in
claiming what is sought by the complaint; or to unite with the defendant in
resisting the plaintiff's claims; or to demand anything adverse to both parties.
(Code Civ. Proc. § 387(b).) Joinder is compulsory where a nonparty “A provision
of law confers an unconditional right to intervene.” (Code Civ. Proc., §
387(d)(1)(A).) Further, the Court shall, upon timely application, permit a
nonparty to intervene in the action or proceeding if: “(B) The person seeking
intervention claims an interest relating to the property or transaction that is
the subject of the action and that person is so situated that the disposition
of the action may impair or impede that person’s ability to protect that
interest, unless that person’s interest is adequately represented by one or
more of the existing parties.” (Code Civ. Proc., § 387(d)(1)(B). PennyMac
contends that the provision of law conferring an unconditional right to
intervene is Code of Civil Procedure section 405.30, which states:
“At any time after notice of pendency of action has
been recorded, any party, or any nonparty with an interest in the real property
affected thereby, may apply to the court in which the action is pending to
expunge the notice. However, a person who is not a party to the action shall
obtain leave to intervene from the court at or before the time the party brings
the motion to expunge the notice.”
Here, the Court finds that the notice of pendency of action
was recorded against the real property located at 4848 Blue Rose Street, North
Las Vegas, Nevada 89081, Assessor’s Parcel No. 124-35-811-039, on December 7,
2021. Further, this Court finds that PennyMac has an interest in the property
at issue. (Declaration of Martha Aguayo (“Aguayo Decl.”), ¶ 8, Exhibit 2, 3.)
Neither Plaintiff nor Defendant filed
an Opposition to this Motion. However, this Motion does not comply with
Code of Civil Procedure, section 387(c), because it does not include a copy of
the proposed complaint in intervention or proposed answer in intervention. The
Court understands that PennyMac has set forth the grounds upon which
intervention rests as it claims that it has an interest in the property,
Plaintiff’s Lis Pendens is clouding title, and that there is no action pending
because the Court found that Plaintiff failed to carry their burden of proof at
trial. Nonetheless, because PennyMac has not complied with section 387(c), this
Court DENIES the Motion without prejudice.
V. CONCLUSION¿¿
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For the foregoing reasons, PennyMac’s
Motion to for Leave to Intervene and Expunge Lis Pendens is DENIED without
prejudice.
Moving party is ordered to
give notice.¿¿¿¿
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