Nair v. Toth

• Court: District Court, W.D. Washington
• Decided: March 26, 2024
• Docket: 2:23-cv-00454
• Status: Unknown

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 JAYAKUMAR SUNDARAN NAIR et al., CASE NO. 2:23-cv-00454-TL 12 Plaintiffs, ORDER ON EX PARTE MOTION TO v. CANCEL LIS PENDENS 13 ALEX TOTH et al., 14 Defendants. 15

16 17 This matter is before the Court on Defendant Dean Kalivas’s Ex Parte Motion to Cancel 18 Lis Pendens. Dkt. No. 24. Defendant argues that his “house-cleaning motion” is appropriate 19 because the Court dismissed this case without prejudice on August 30, 2023. Defendant notes 20 that despite the case being dismissed, on September 28, 2023, Plaintiff Jayakrishnan Nair 21 referenced this case as cause for encumbering the title to two properties that are claimed to be at 22 issue in this matter pursuant to RCW 4.28.320. Dkt. No. 24 at 1–2. That same day, Plaintiffs 23 filed a motion to reconsider the Court’s order of dismissal, which was eventually denied. See 24 Dkt. Nos. 17, 19. Plaintiffs filed a notice of appeal to the Ninth Circuit on November 20, 2023. 1 See Dkt. No. 20. Defendant Kalivas filed an ex parte motion to cancel lis pendens on 2 December 4, 2023. Dkt. No. 24. The appeal is still pending at the Ninth Circuit. 3 A “lis pendens” is an “instrument having the effect of clouding the title to real property.” 4 RCW 4.28.328(1)(a). A court has discretion to cancel a lis pendens when three conditions are

5 met: (1) the action must be settled, discontinued, or abated, (2) an aggrieved person must move 6 to cancel the lis pendens, and (3) the aggrieved person must show good cause and provide proper 7 notice. RCW 4.28.320; see also Suess v. Nw. Timber & Dev., Inc., 24 Wn. App. 2d 1010, 2022 8 WL 14297047, at *15 (2022) (unpublished) (quoting Guest v. Lange, 195 Wn. App. 330, 336, 9 381 P.3d 130 (2016)). “[A] notice of appeal, by transporting a case from a trial court to a court of 10 appeals, renders the action in that case not ‘settled, discontinued, or abated.’” Guest, 195 Wn. 11 App. at 340. Further, “the weight of authority from other jurisdictions suggests that an appeal 12 preserves the lis pendens.” Id. at 339. 13 The Court finds that this case is not fully “settled, discontinued, or abated” due to the 14 pending Ninth Circuit appeal. See, e.g., Suess, 2022 WL 14297047 at *15. Therefore, the Court

15 DENIES Defendant’s motion without prejudice. 16 Dated this 26th day of March 2024. 17 A 18 Tana Lin United States District Judge 19 20 21 22 23 24