Hemlani v. Hemlani

Opinion

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3 IN THE SUPERIOR COURT OF GUAM 4 KA.lVILESH K. HEMLANI, individually )

and derivatively in the name of and on ) CiviL CASE NO. CV0758-12 5 behalf of RADHI PURAN TRUST, )

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Plaintiff, ) DECISION AND ORDER 7 ) ON MOTION TO EXPUNGE vs. )

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9 RADHI P. HEMLANI, MANU MELWANI,)

JETHMAL K. MELWANI, ISHWAR P. )

10 HEMLANI, RADHI'S FOUNDATION, ) II RADHI PURAN TRUST, PACIFIC ) AMERICAN TITLE INSURANCE & )

12 ESCROW COMPANY, VASUDEV B. )

HEMLANI, P.D. HEMLANI )

13 FOUNDATION, LTD. and DOES 1-100, )

)

14 Defendants. )

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16 INTRODUCTION

17 This matter came before the Honorable Alberto C. Lamorena III on 18 September 16, 2013 on Defendants' Motion to Expunge Notice of Lis Pendens. 19 Plaintiff Kamlesh Hemlani is represented by Thomas M. Tarpley, Jr. Defendant 20 Radhi's Foundation is represented by Attorney Jeffrey A. Cook. Defendants Manu 21 Melwani, Jethmal Melwani, Ishwar Hemlani, and Pacific American Title Insurance 22 & Escrow Company are represented by Attorney Bill R. Mann. Defendants Radhi

23 Hemlani and Radhi Puran Trust are represented by Attorney Elyze M. Iriarte.

24 Defendants Vasudev and P.D. Hemlani Foundation, LTD. are represented by

25 Attorney Rodney J. Jacob. After a Hearing, the Court took motions under

26 advisement. The Court now issues its Decision and Order.

Decision and Order Case No. CV0758-12

BACKGROUND

2 On June 24, 2013, Plaintiff Kamlesh Hemlani recorded a Notice of Lis 3 Pendens at the Department of Land Management. This notice affects certain 4 properties owned by Manu Melwani and Ishwar Hemlani. 5 On July 10, 2013, this Court issued a Decision and Order dismissing this 6 action for lack of standing. A Judgment of Dismissal was filed on September 6,

7 2013.

8 On July 24, 2013, Defendants Manu Melwani and Ishwar Hemlani filed their

9 Motion to Expunge the Notice of Lis Pendens. They argue there are three reasons why expungement is proper here. First, Plaintiff was never granted this Court's 10 permission to file the proposed Amended Complaint. Secondly, the Notice is II defective on its face as it does not contain the names of the parties and the object of 12 the action as required by 7 G.C.A. § 14103. Finally, the proposed Amended 13 Complaint does not contain factual allegations necessary to demonstrate that the 14 new claims are against the title or possession of real property.

15 On August 21, 2013, Defendants P.D. Hemlani Foundation and Vasudev 16 Hemlani joined in the motion. In joining the motion, they argue in favor of also 17 expunging the Notice of Lis Pendens which was first recorded a year earlier on June 18 28, 2012. It is their contention that since the case has been dismissed, this action 19 may not be used to support a lis pendens.

20 Plaintiff Kamlesh Hemlani filed his Opposition on September 6, 2013. He 21 argues, essentially, that the notice is proper here and any facial deficiencies on the 22 notice can be easily cured. For the reasons set forth below, the Motion shall be 23 granted. 24 DISCUSSION 25 Notice of Lis Pendens is provided for in Title 7 of the Guam Code.

26 In an action affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and the 27 defendant, at the time of filing an answer, when affirmative relief is 28 claimed in such answer, or at any time afterwards, may record in the Department of Land Management, a notice of the pendency of the

Decision and Order Case No. CV0758-12

action containing the names of the parties and the object of the action or defense, and a description of the property affected thereby. From the 2 time of filing such notice for record only, shall a purchaser or 3 encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its 4 pendency against parties designated by their real names.

5 7 G.C.A. § 14103. Here, Defendants' properties are subject to such a notice, 6 despite the fact that there is no longer an action in pendency. Defendants cite to 7 authority from other jurisdictions which stand for the principle that a lis pendens 8 may no longer be supported by a dismissed action. See Allied Eastern Financial v.

9 Goheen Enter., 265 Cal.App.2d 131, (1968).

10 While Title 7 of the Guam Code is silent as to how to extinguish a notice of lis ll pendens, at least one Guam Court has held that expungement is the proper avenue. 12 See Decision and Order, CV0580-10, South Pacific Petroleum Corporation v. Access 13 Development, Inc., May 26, 2010 (citing California precedent in finding 14 expungement proper under the circumstances). 15 Plaintiffs arguments in opposition does nothing to counter the fact that 16 Defendants' property is subject to a notice of lis pendens while there is no action

17 pending. For this reason, Defendants motion shall be granted as to both the June

18 28, 2012 Notice and the June 24, 2013 Notice. The Court does not reach

19 Defendants' other arguments.

CONCLUSION

20 For the reasons set forth above, Defendants' Motion to Expunge the Notices 21 of Lis Pendens is hereby GRANTED. Defendants shall prepare a Judgment 22 consistent with this Decision and Order, approved by Plaintiff as to form.

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Decision and Order Case No. CV0758-12

It is SO ORDERED this lith day of December, 2013.

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4 HONORABLE ALBERTO C. LAMORENA, III 5 Presiding Judge, Superior Court of Guam 6

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