Garcia v. Pinhero

California Court of Appeal Jul 27, 1937 No. Civ. 1845Published

Before: Jennings

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Holding. A notice of lis pendens ceases to provide constructive notice once the underlying action is terminated by a final judgment and the time for appeal has expired, and it does not extend to subsequent, separate actions.

Issues

Whether a notice of lis pendens filed in a prior action imparts constructive notice of a subsequent, similar action involving the same property.
Whether a notice of lis pendens remains effective after the underlying action has been dismissed and the time for appeal has expired.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When, however, the action wherein the notice is filed ceases to be pending and is terminated the notice of its pendency has fully performed its office and may not be relied upon to afford constructive notice that a similar action may subsequently be instituted.”

[195]

JENNINGS, J.

The plaintiff instituted the above-entitled action for the purpose of quieting title to certain real property in Kern County against claims in said land asserted by the defendants which were alleged to be void. The action was instituted on November 27, 1934. Trial of the action resulted in the entry of a decree in favor of the defendants from which this appeal has been taken.

The sole question here presented relates to the sufficiency of a notice of

Us pendens

filed in a prior action instituted by appellant’s predecessor against a person from whom respondents acquired their interest in the property to impart constructive notice of the pendency of such action to respondents. This prior proceeding was commenced on February 9, 1932, on which date the notice of

lis pendens

was recorded. The purpose of this suit was to obtain a decree canceling a certain deed whereby appellant’s predecessor had conveyed title to the property to Luzia Azevedo. A demurrer both general and special which was interposed to the complaint in said action was sustained with leave to the plaintiff to amend the pleading within a specified time. The complaint was not amended within the designated time, and on

ex parte

application of the defendant therein a judgment dismissing the action was entered on November 4, 1932. No appeal was taken from this judgment. On January 5, 1933, Luzia Azevedo, the sole defendant in said action, executed a deed of trust to the property described in the aforesaid notice of

lis pendens.

In this deed of trust respondent, Bank of America National Trust & Savings Association, was named trustee and respondent, A. H. Pinhero, was designated the beneficiary. This instrument recited that it was given to secure payment of a promissory note in the amount of $1200 which was executed on the same date in favor of the above-mentioned beneficiary. On June 12, 1933, the plaintiff in said deed cancellation action gave notice that he would move to vacate the judgment of dismissal on the grounds of inadvertence and neglect of his attorney in failing to file an amended complaint within the time specified in the order sustaining the demurrer to his complaint. This motion was denied on July 31, 1933. Thereafter on a date which is not disclosed by the record appellant’s predecessor instituted a second action against Luzia Azevedo wherein he sought cancellation of the aforementioned deed, and a decree was entered in this

Garcia v. Pinhero

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JENNINGS, J.

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