California
Appeals

On February 2, 2007, after the appeal was fully briefed, McMahon filed a motion to dismiss the appeal.  The Shahs filed a response to the motion on February 20, 2007.  We agree with McMahon that the order is not appealable, and the Shahs' only remedy for challenging the order was a petition for writ of mandate filed within 20 days of notice of the order. 

Statutory provisions relating to motions to expunge lis pendens are contained in Title 4.5, Chapter 3 of the Code of Civil Procedure.  Code of Civil Procedure section 405.39 provides: 

"No order or other action of the court under this chapter shall be appealable.  Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate.  The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party.  The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days.  A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file."  (Italics added.)

            The attorney's fee order from which the Shahs appeal was made pursuant to Code of Civil Procedure section 405.38, which is part of Chapter 3.  Accordingly, the Shahs' only remedy was to seek a writ of mandate within the time limits imposed by section 405.39. 

            Code of Civil Procedure section 904.1, subdivision (a)(11), under which the Shahs purport to appeal, does not apply because the order awarding attorney's fees was not a sanction order but an order awarding attorney's fees to a prevailing party under a specific statute.  As an alternative theory, the Shahs contend that "expungement orders are final judgments in a special proceeding," and the order is appealable as a collateral order reviewable after a final judgment.  (Code Civ. Proc., § 904.1, subd. (a)(1).)  However, a motion to expunge a lis pendens pursuant to Code of Civil Procedure section 405.30 et seq,. is not a "special proceeding," nor is the order granting the motion a "judgment," which is a "final determination of the rights of the parties in an action or proceeding."  (Code Civ. Proc., § 577.)  Rather, the lis pendens procedure provides a means by which a court may dispose of meritless real estate claims at the preliminary stage of a case, and an appellate court may review that order by way of a petition for writ of mandate. 

            The appeal is dismissed.  McMahon shall recover her costs incurred in connection with the appeal.

Shah v. McMahon B1889723/12/07 CA2/5
Shah v. McMahon B1889723/12/07 CA2/5-pdf