Kirkeby v. Super. Ct. 6/19/03 CA4/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G031262

Case Date: 06/19/2003

Preview:Filed 6/19/03

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE CYNTHIA KIRKEBY, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; FREDERICK W. FASCENELLI et al., Real Parties in Interest. G031262 (Super. Ct. No. 01CC09667) OPINION

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Thomas N. Thrasher, Sr., Judge. Petition denied. Rick Augustini for Petitioner. No appearance for Respondent. Callahan & Blaine, Jim P. Mahacek, Michael J. Sachs, and Kathleen L. Dunham for Real Parties in Interest.

This case requires us to decide whether a complaint that pleads a cause of action to set aside a fraudulent conveyance affects title to or the right to possession of specific real property so as to support a lis pendens. We agree with the trial court that this particular complaint does not support a lis pendens, and we deny relief from the trial court's order expunging the lis pendens and awarding attorney fees to the prevailing party. FACTS Cynthia Kirkeby petitions for relief from an order of the superior court expunging two notices of lis pendens that she recorded in connection with her derivative action against the officers, directors, and attorneys of FasTags, Inc. (FasTags). The trial court expunged the notices of lis pendens because it found Kirkeby had not stated a real property claim as required by Code of Civil Procedure section 405.4.1 Kirkeby contends her causes of action to annul fraudulent conveyances are sufficient to state a real property claim; she also seeks relief from the court's order imposing attorney fees for bringing the motion to expunge, claiming the trial court abused its discretion. The facts alleged in the first amended complaint are assumed to be true for purposes of our "demurrer-like" review of whether the pleadings state a real property claim. (BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, 957-958;

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