Hilberg v. Superior Court

Opinion

ABBE, J.

In this proceeding, we consider whether respondent superior court abused its discretion in denying petitioners’ motion to expunge a lis pendens. (Code Civ. Proc., § 409.1.) We hold that the court erred in its refusal to give due consideration to evidence that suggested that there was no merit in the complaint, and shall grant the petition for a writ of mandate.

Facts

Petitioners Clinton Hilberg and Lorraine Hilberg (hereafter referred to as Hilbergs) are defendants in a complaint for specific performance of a contract to purchase real property brought against them by real party in interest, Eddie Mendrin (hereafter referred to as Mendrin). Mendrin alleges that the Hilbergs agreed to sell certain real property to him. It is averred that, on March 19, 1986, he gave notice of the exercise of his option to purchase Hilbergs’ property, placed $5,000 into escrow, but Hilbergs have refused to comply with the terms of the option agreement. Mendrin filed a lis pendens against the property.

On July 18, 1989, a hearing on Hilbergs’ motion to expunge was held. They asserted that there was a patent lack of merit in Mendrin’s lawsuit, and the Hilbergs presented statements made by Mendrin at his deposition that indicate a lack of merit in his claim.

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In addition, Hilbergs tendered evidence that Mendrin had attempted to materially alter his contract with them prior to any attempt to exercise it and that, at the 11th hour, he was negotiating with lenders in order to

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obtain funds necessary to purchase the property when the option expired. Hilbergs also averred that, in November of 1986 they notified Mendrin of an offer to sell the property to him upon the same terms as previously proposed. However, Mendrin refused to act upon these terms unless Hilbergs agreed to carry a note in the sum of fifty thousand dollars ($50,000). Finally, Hilbergs alleged that Mendrin told them he would “fix them” and would “cloud title to the property.”

Significantly, Mendrin did not present any declaration in opposition to the motion to expunge. Nonetheless, the court denied the motion upon the ground that the action affects title and possession to real property. The trial court was of the view that once it determined that Mendrin had alleged a prima facie case relating to title of the real property, it was not necessary for it to consider any evidence of the lack of merit in Mendrin’s case-in-chief.