                                                                             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                           NOT FOR PUBLICATION                                JUL 02 2010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.


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