Appeals Response to Respondent. Based upon 2 issues that respondent states are unappealable - and in fact that statement is correct. Order to Expundge Lis Pendens and Motion to Intervene - Unappealable What is acctually being appeales is I. THE MOTION TO INTERVENE SHOULD HAVE NOT BEEN GRANTED BECAUSE THE MOTION WAS TAKEN OFF CALENDARThe moving party did not appear for scheduled motion, no proof filed, ordered the motion off calendar, objected to motion to intervene, opposing counsel appeared 3hrs later,court put motion back on calendar. Party no longer there w/o notice to present evidence. Judge abused his discretion in matter. Order was Granted. II. THE MOTION TO COMPEL WITHDRAWAL OF THE LIS PENDENS SHOULD NOT HAVE BEEN GRANTED BECAUSE THE PROPERTY AT ISSUE IS COMMUNITY PROPERTYDivorce case pre-trial 1/26 hasnt been heard and expungement grantedI cant find case law and/or codes to make items appealable - need case names and codes to look up to prepare response to appeal
State/Country relating to Question: California
The property was granted in aggreement to be held in construtive trust with a earnest money deposit for property development aggreement for a condiminium build approx. 31 million. to be 1/3 pro rata and to be held in construtive trust. No valid consideration and not bonafide purchachasers. Two Twin Brother purchased property in 1998 and with Sister and Brother in-Law who now hold title fraudulantly stealing it and paid $0
I'd like to try to help you, but your facts are extremely convoluted. Could you please slow down and explain wha's going on?
Thanks in advance.
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Sorry about that - they do not give you much space so I tried to shorten the facts. Below is a copy of the opening Brief Filed - The Intervenors filed thier response stating that the Motion to Intervene and the Expungement of the Lis Pendens are both unappealable. I need to file the response to their response to show what we were appealing as appealable. I have been able to find similar cases to prove case law to support the appeal. I need some cases or civil codes to reference to be able to write this response. Thanks, XXXXX XXXXX you time - Dawn_______________________________________________________________________. I. THE MOTION TO INTERVENE SHOULD HAVE NOT BEEN GRANTED BECAUSE THE MOTION WAS TAKEN OFF CALENDAR
II. THE MOTION TO COMPEL WITHDRAWAL OF THE LIS PENDENS SHOULD NOT HAVE BEEN GRANTED BECAUSE THE PROPERTY AT ISSUE IS COMMUNITY PROPERTY
STATEMENT OF THE CASE
On February 27, 2008 Carey Baca filed a Petition for Dissolution from Sherri Myers-Baca. On February 29, 2008 Sherri Mayers-Baca filed a Lis Pendens in the State of Arizona against property ("The Property") located at 5930 Old Highway 95, 85344, in the County of La Paz, Arizona. Sheri Myers-Baca claims a community property interest in The Property. Steven R. Callahan and Lisa M. Callahan filed a Motion for Leave to Intervene on the dissolution matter between Carey Baca and Sherri Myers-Baca because they also claim an interest in The Property. After a morning session hearing April 10,XXXXXtook the Motion for Leave to Intervene off calendar because there was no appearance by the moving party. During the afternoon session, the moving party appeared and the court put the Motion for Leave to Intervene back on the calendar. The court directs moving party to give notice and appear at 1:30 pm. The court found there was no formal written opposition to the Motion for Leave to Intervene. The Court granted the Motion for Leave to Intervene.
On April 20, 2009 Sherri Myers-Baca filed a Motion for Reconsideration and a Motion to Vacate the granted Motion for Leave to Intervene. On June 10,XXXXXruled the Motion to Vacate denied and the Motion for Reconsideration granted. The court ruled that the prior ruling of the court on April 10, 2009 stands.
On May 19, 2009 Steven R Callahan and Lisa M. Callahan filed for Declaratory Relief for an order declaring that a second Lis Pendens was improperly filed and subject to expungement. The complaint alleges that Sherri Myers-Baca has no interest in The Property. On June 26, 2009 the Motion to Expunge Lis Pendens was granted on grounds that the claim on which the notice is based does not contain a real property claim.
STATEMENT OF APPEALABILITY
This appeal is from the judgment of the San Diego County Superior Court and is
authorized by the Code of Civil Procedure, section 904.1(a)(3)-(13).
STATEMENT OF FACTS
Carey M. Baca and Sherri Myers-Baca were married on December 31, 1999. (Petition for Dissolution filed 2/27/08). A true and correct copy of the marriage certificate is attached. (See Exhibit A). Prior to marriage Casey M Baca purchased property in the State of Arizona on or about September 15, 1998 which is now at issue in this dissolution case. (Myers-Baca Declaration, filed 4/10/09 ¶ 10) A true and correct copy of the joint tenancy deed is attached as (See Exhibit B). Sherri Myers-Baca has an interest in The Property. (RT, 4/10/2009, page 5, lines 18-19).
The court heard a Motion for Intervention by Steven Callahan and Lisa Callahan on April 10, 2009. (RT, 4/10/2009, page 4, lines 8-9). The intent was to allow the moving party to intervene if the opposing party did not object. (RT, 4/10/2009, page 6, lines 14-16). Opposing party Carey Baca objected. (RT, 4/10/2009, page 6, line 17). The moving party did not appear and the court took the case off calendar. (RT, 4/10/2009, lines 23-24). Counsel for the moving party appeared late after the court had ordered the matter off calendar. (RT, 4/10/2009, page 8, lines 6-9). The court put the motion back on calendar and proceeded in the afternoon. (RT, 4/10/2009, page 8, line 3). The court granted the Motion for Leave to Intervene. (RT, 4/10/2009, page 8, lines 24-25). The court reasoned there was no opposition filed. (RT, 4/10/2009, page 9, lines 6-7).
The court heard the Motion to Expunge the Lis Pendens and to Compel the Petitioner, Husband and wife, to execute a withdraw of the 2nd Lis Pendens. (RT, 6/26/2009, page 3, lines 10-11).
The court granted the Motion to Expunge Lis Pendens and Compel Petitioner/Husband with Respondent/Wife to execute a withdrawal of 2nd Lis Pendens on grounds that the claim on which the notice is based does not contain a real property claim. (Minute Order dated June 26, 2009)
ARGUMENTI. THE MOTION TO INTERVENE SHOULD HAVE NOT BEEN GRANTED BECAUSE THE MOTION WAS TAKEN OFF CALENDAR
C. Judicial Discretion: It appears that Honorable Judge Robert Gallivan abused his discretion in this matter. The matter was taken off calendar and then put back on calendar in the afternoon. Sherri Myers-Baca and Carey Baca had no opportunity to present oral argument against the motion. That opportunity was taken away when the judge ordered the motion back on calendar the same day it was taken off. Further, Sherri Myers-Baca and Carey Baca had not have opportunity to present evidence that they did not receive notice of the motion. Therefore the judge abused his discretion in ruling the matter back on calendar.
A. Dissolution. Carey M. Baca and Sherri Myers-Baca were married on December 31, 1999. Carey M. Baca acquired the Property at issue prior to marriage. During the course of their marriage Carey M. Baca made several payments on the property to pay off the amount owed to the prior owner of The Property with community property funds. Further, Carey M. Baca used income earned during the marriage to make improvements on the Property. As a result, Sherri-Baca claims The Property has a community property component. Therefore, without a court determination on the community property, the court erred by compelling a withdrawal of the Lis Pendens because the court has no evidence to determine the community property ownership of Carey M. Baca and Sherri Myers-Baca.
B. Transfer. The community property interest in The Property was transferred to Seven R. Callahan and Lisa M. Callahan without the consent or approval of Sherri Myers-Baca. Sherri Myers-Baca seeks to prevent the sale of The Property until her community property portion can be determined. The court erred because it has not considered the evidence regarding the community share of the property before making a ruling. This order must be reversed.
Sherri Myers-Baca submits that the court failed to allow proper notice of Motion for Intervene after the motion was removed from the calendar. As a result, Sherri-Myers-Baca was not given an opportunity to object to the proof of service for the Motion to Intervene. Further, the court has not considered any evidence of my community property share in The Property. Therefore the court abuses it discretion to compel withdrawal of Lis Pendens. Sherri Myers-Baca respectfully XXXXX XXXXX this Court reverse the decision of the trial court and vacate the Motion to Intervene and the order to compel withdrawal of Lis Pendens.
This is REALLY confusing.
First, a lis pendens cannot be filed in California for an Arizona real property, because only a court of the state in which a property is sited has jurisdiction overthat property. Thus, the lis pendens must be filed in the Arizona county where the property is located.
Second, no California court can make a judgment concerning the disposition of Arizona real property, because the California court has no "in rem" jurisdiction over Arizona real property.
A California court does have authority to determine the parties' respective rights in Arizona real property, and then offset their rights against property over which the court has direct jurisdiction. But, the court cannot make any disposition of the property itself.
Thus, any lis pendens filed in California concerning the Arizona property would be subject to expungement, because it is improperly recorded.
A third party who has an interest in the Az property could lawfully intervene in the divorce in order to assert an interest in the outcome of the AZ property, but it would not be strictly necessary, because the California court's decision wouldn't be binding on the third party. Since the third party has intervened, their respective rights in the property could be decided, but there would be no way to file a lis pendens in Arizona, because that lis pendens only provides notice of Arizona legal actions.
The botXXXXX XXXXXne is that with or without the lis pendens Sherri could now require that the rights of all parties be determined at trial. Then, if Sherri proves that she has a community property interest, she could enforce that judgment against the third party owners of the Arizona property with a money judgment which could be registered in Arizona and create a lien against the Arizona property.
I realize that I'm throwing a lot of new information at you, but once you understand what I'm talking about, you may realize that you're off on a wild goose chase.
Hope this helps.
Wow, where have you been for the last 8 years. I completley understand what your saying, I have done the research and usually continue to until I have the correct answers and I really couldnt figure it out myself and kept ending up back in Arizona stating they needed to fiile a complaint there. And now you have confirmed the wild goose chase, it should put the case back in the right direction.
Thank you for taking the time to respond. I can say its was the best advise given since this mess started.
Thanks Again - Dawn
P.S. You wouldn't happen to be from Arizona would you?
I'm flattered by your comments.
The late Chief Justice Burger of the U.S. Supreme Court stated many times, in public, that he believed at least 75% of the lawyers in the USA were incompetent to practice law.
I think Justice Burger was being extremely kind. In my view, it's more like 99%. Maybe things have simply become worse in thep past 30+ years. Regardless, I tell people all the time, that unless their lawyer can cite some legal authority for a position, be extremely skeptical, because more than likely, the attorney is talking out of his a**.
Ironically, I didn't give you any legal authority for my position in my answer. So, I shall do so now: United States Consitution, Amendment 10, provides that each state remains an independent sovereigin, entitled to govern its own affairs, except where the federal constituion expressly provides otherwise. Real property is the exclusive domain of the state in which that property is sited, therefore, only the courts of the state in which the property is found, can exercise control over that property. This is the concept of "in rem" jurisdiction.
PS. I'm not in Arizona. But, I'm here on justanswer.com, if you need help.
Thanks again for your confidence.
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