Empfield v. Superior Court

California Court of Appeal Jun 27, 1973 No. Civ. 42127Published

Before: Fleming

AI Brief

AI-generated · verify before citing

Holding. The court held that the superior court abused its discretion by denying a motion to expunge a lis pendens where the property had been materially altered and adequate relief could be secured to the recording party through an undertaking.

Issues

Whether the trial court abused its discretion in denying a motion to expunge a lis pendens under Code of Civil Procedure section 409.2.
Whether the lis pendens statutes are unconstitutional as a deprivation of property without due process.

Disposition. remanded

Quotations verified verbatim against the opinion

“It is therefore manifest “that adequate relief can be secured to” the Spickas by provision for a suitable undertaking. (Code Civ. Proc., § 409.2.) The court abused its discretion in denying petitioners’ motion in these circumstances.”

“The notice of lis pendens does not deprive petitioners of “necessities of life” or any significant property interest.”

Opinion

FLEMING, J.

Petitioners (the Empfields and Powells) sold an apartment house to the real parties in interest (the Spickas) taking as down payment a parcel of unimproved real property. The Spickas allegedly failed to make payments on trust deeds on the apartment house and, petitioners brought an action for foreclosure of a deed of trust which named them as beneficiaries. The Spickas filed a cross-complaint for rescission or reformation of the transaction, alleging fraud on the part of a real 'estate salesman and imputing liability to petitioners as principals. On 7 February 1973 the Spickas recorded a lis pendens against the real property given to petitioners as a down payment. Petitioners,'who had constructed houses on the real property and had arranged for their sale., discovered the lis pendens on 1 April 1973. They filed a notice of motion to expunge the lis pendens, alleging that their sales would be lost if the lis pendens remained of record. The superior court denied their motid'h.

The relevant provisions of the Code of Civil Procedure provide: “§ 409. In an action concerning real property or affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint,

[107]

and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may record in the office of the recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, and the object of the action or defense, and a description of the property in that county affected thereby. . . . From the time of filing such notice for record only, shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action as it relates to the real property and only of its pendency against parties designated by their real names.

“§ 409.1.....the court in which the action is pending shall, upon motion of a party to the action supported by affidavit, order that the notice be expunged, if it is shown to the satisfaction of the court, by clear and convincing proof, that ... the party recording the notice has commenced or prosecuted the action for an improper purpose and not in good faith.

Empfield v. Superior Court

AI Brief

FLEMING, J.

More from California Court of Appeal

Related research

AI Brief