Metropolitan News-Enterprise


Wednesday, March 14, 2007


Page 1


C.A.: Fee Award for Expunging of Lis Pendens Not Appealable




An order awarding attorney fees to a party who succeeds in expunging a lis pendens is not appealable, the Court of Appeal for this district has ruled.

Div. Five Monday ordered dismissal of a purported appeal from an order by Los Angeles Superior Court Judge Edward A. Ferns, who awarded more than $18,000 in fees to attorneys for Marilyn McMahon, a Long Beach property owner.

The fee award, like the underlying order expunging the lis pendens, could only be reviewed pursuant to a petition for writ of mandate, which was not filed within the 20 days allowed by the applicable statute, Justice Orville Armstrong said.

The ruling stems from a suit against McMahon by Jayendra and Usha Shah, who claimed that they offered to purchase the property in 2004 but that McMahon refused to sell to them because they are of Asian-Indian origin. McMahon responded that the offer was declined because it was too small and because it contained unacceptable contingencies.

During that same period Russell Shaw, who is the Shahs’ son but uses an Anglicized version of the surname, also made an offer to purchase the property. McMahon submitted a counteroffer, which the trial court found was not accepted.

Assignment Claimed

The Shahs, claiming to be their son’s assignee under a purported contract for the purchase of the property, sued McMahon for specific performance and for damages for violation of their civil rights, and recorded three lis pendens against the property. McMahon moved to expunge the lis pendens, and Ferns granted the motion.

The Shahs did not challenge that order. More than two months after it was entered, McMahon moved for attorney fees, which the judge awarded under Code of Civil Procedure Sec. 405.38.

Just under two months later, the plaintiffs filed notice of an appeal pursuant to Code of Civil Procedure Sec. 904.1(a)(1)(11), which permits an appeal from an interlocutory award of sanctions in excess of $5,000. After the case was briefed, McMahon’s counsel moved to dismiss the appeal.

That motion is well taken, Armstrong said, because Sec. 405.38 is part of Title 4.5, Chapter 3 of the code, and another section of that chapter provides that “[n]o order or other action of the court under this chapter shall be appealable.”

Writ Procedure

Sec. 405.39 provides instead that such an order may be reviewed on petition for writ of mandate, filed and served within 20 days after service of written notice of the order. The 20-day period is subject to a single extension by the trial court, which may not exceed 10 days and can only be granted within the original 20 days.

The provision cited by the plaintiffs, Armstrong went on to say, does not apply because an award of attorney fees under a specific statute is not a sanction order. Nor, the justice said, are expungement orders “final judgments in a special proceeding,” which would make the attorney fee order appealable as a collateral post-judgment order.

Attorneys on appeal were Frank A. Weiser for the Shahs and Pamela A. Swindells and Eric C. Demler of Kaiser & Swindells for McMahon.

The case is Shah v. McMahon, 07 S.O.S. 1193.


Copyright 2007, Metropolitan News Company