David Menken v. Coldwell Banker/itildo, Inc. , 386 F. App'x 599 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MENKEN, No. 09-16109
Plaintiff - Appellant, D.C. No. 2:04-cv-00598-MHM
v.
MEMORANDUM*
GERRY F. EMM; et al.,
Defendants,
and
COLDWELL BANKER ITILDO, INC., a
foreign corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted June 17, 2010**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS, FISHER, and TYMKOVICH,*** Circuit Judges.
David Menken (“Menken”) appeals an adverse summary judgment for Coldwell
Banker Itildo, Inc., Marsha Tomerlin, and others (together “Tomerlin”), in an action
for damages alleging Tomerlin’s judgment in a previous federal action in Nevada was
not grounds to file a lien against his real property in Arizona. Reviewing de novo, see
Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002), we affirm.
Even if Menken is correct that enforcement of the Nevada Orders was time
barred in Arizona,1 recording them was hardly “groundless.” Menken concedes that
nothing about the Nevada judgments “on [their] face [was] forged, misstated, or
***
The Honorable Timothy M. Tymkovich, United States Circuit Judge for
the Tenth Circuit, sitting by designation.
1
The district court determined Tomerlin’s recording was timely under Arizona
law as it existed in 2003, see Day v. Wiswall, 464 P.2d 626, 633 (Ariz. Ct. App. 1970),
but untimely under current Arizona law pursuant to Grynberg v. Shaffer, 165 P.3d
234, 236–38 (Ariz. Ct. App. 2007). It understood Day to toll the statutory period until
the termination of an appeal and Grynberg to look at when a judgment was
enforceable in the foreign state to determine the date when the Arizona statutory
period began. Though Day’s language was imprecise, the Arizona Court of Appeals
seemed to look to California law, determining when Arizona’s statutory period began
to run based on the California rule because the foreign judgment was from California.
See Day, 464 P.2d at 633 (“In an action on a foreign judgment its validity and finality
are to be tested by the law of the jurisdiction where such judgment was rendered.”);
see also Jones v. Roach, 575 P.2d 345, 348–49 (Ariz. Ct. App. 1977). However, we
need not decide this question because of—as we explain—the imprecision in Day’s
language.
2
false.” Nor has he established a triable issue that Tomerlin knew or had reason to
know the lien was groundless. A lien is “groundless” for an award of damages to a
property owner when “the underlying action affecting title to the property has no
arguable basis.” See Mining Inv. Group, LLC v. Roberts, 177 P.3d 1207, 1212–13
(Ariz. Ct. App. 2008). Therefore, a lien, even if eventually found improper, is not
groundless if the reviewing court finds “‘some’ arguable basis to [the] claim.” Id. at
1213; see also Evergreen West, Inc. v. Boyd, 810 P.2d 612, 619 (Ariz. Ct. App. 1991)
(“[A] plaintiff is not prohibited from recording a lis pendens merely because he may
lose on the merits of his action, and it is this which must be kept in mind when
construing the meaning of the term ‘groundless’ as used in § 33–420.”).
Applying this standard, we reject Menken’s claim that he has raised a factual
dispute by alleging the lien was groundless. Whether Day v. Wiswall, 464 P.2d 626,
633 (Ariz. Ct. App. 1970), created a standard that looked to the foreign state’s finality
rule, or instead created a rule that the statutory period always runs from the end of the
appellate process, was at least debatable before Grynberg v. Shaffer, 165 P.3d 234,
236–38 (Ariz. Ct. App. 2007), because of Day’s imprecise language. Therefore, we
conclude that Tomerlin’s recording of the lien before the clarity Grynberg provided
was not “groundless.” See Mining Inv. Group, LLC, 177 P.3d at 1212–13.
AFFIRMED.
3